05 December 2023

The Belgian Climate Case

Navigating the Tensions Between Climate Justice and Separation of Powers

On November 30, the Brussels Court of Appeal rendered a landmark decision in the climate case brought by “Klimaatzaak” (“climate case” in Dutch) against Belgian public authorities (the federal and the three regional governments). In this decision, the court found the federal authority and the Brussels and Flemish regions’ climate action to be in violation of Articles 2 and 8 of the ECHR and of their duty of care, and imposed a minimal GHG reduction target to be reached by Belgian authorities for the future.

In the first instance, the tribunal had considered that the four governments’ poor results in terms of greenhouse gas (GHG) emissions and policy coordination constituted a violation of their duty of care and human rights obligations (under articles 2 and 8 of the ECHR). However, in the first instance, the judge did not issue an injunction mandating governments to elevate their climate targets in light of climate science, citing concerns related to the separation of powers. The decision acknowledged faulty behaviors but asserted that it lacked legal authority to grant a remedy. This triggered the decision of Klimaatzaak to appeal the decision. The scope and limits of the judiciary dealing with climate concerns vis-à-vis the other branches were once again a central point of contention in the recent ruling. This time, however, the appeal court went further by imposing quantified targets: three authorities were found liable (the Federal, the Brussels and the Flemish governments) and must collaborate to reduce the overall volume of annual territorial GHG in Belgium by at least 55% by 2030 compared to the levels in 1990.

In their blogpost, Alice Briegleb and Antoine De Spiegeleir provide a clear overview of the case, exploring its previous stages and insisting on the continuing failures of the Belgian climate governance and its complex federal structure. We focus on our part on how the decision makes it clear that the climate justice movement is now confronted with the tension between the legally required and the ethically desirable parameters of climate effort distribution.

Judging past climate action in light of human rights obligations

After setting the scene by briefly recalling the state of climate science and thoroughly listing the different climate objectives and reduction efforts results at various levels, the court examines the plea related to Articles 2 and 8 ECHR. In that context, it first and foremost rejects the relevancy of the argument that  Belgium’s climate action, when considered in isolation, would necessarily remain insufficient to avert dangerous climate change. The limited contribution of Belgian emissions to the overall volume of emissions does not absolve governments from fulfilling their positive human rights obligations (§160).

Put differently, the global scope of climate change does not serve as an excuse for national authorities: human rights dictate that each country must contribute its “fair share” to mitigate climate chaos. Notably, the court references both the Dutch Supreme Court’s decision in Urgenda and the German Constitutional Court’s ruling in Neubauer to reinforce the argument. Judicial dialogue on the European continent is alive and kicking.

To determine whether public authorities took sufficiently appropriate and reasonable measures in light of the most robust knowledge available at the time, the court meticulously scrutinized the climate action undertaken between 2013 and 2020, evaluating its outcomes and comparing them against the benchmarks established by climate science during that period. Indeed:

“It is only by analysing GHG reduction objectives that have been set and by verifying the results that have been achieved that it is possible to assess the extent to which the right to life and to respect for private and family life has been sufficiently safeguarded. […] the setting of an inadequate objective coupled with results which are also inadequate constitute, in that context, a sufficient presumption that the public authorities did not take appropriate measures to prevent the realisation of the serious and imminent risk of which they were aware, and thus infringed Articles 2 and 8 of the ECHR, unless they can establish that those measures constituted a disproportionate burden” (§163, our translation)

During this 2013-2020 period, the court contends that compelling scientific evidence available at the time unequivocally dictated that the protection of fundamental human rights necessitated authorities to achieve, at a minimum, a 25% reduction in greenhouse gas (GHG) emissions compared to 1990 levels by 2020, a target that was politically endorsed at the COP13. Furthermore, the 2018 IPCC report should have prompted authorities to elevate this target to at least 30% after its publication. The federal government and two of the three regions (the Flemish Region and the Brussels-Capital Region) fell short of achieving sufficient outcomes in terms of GHG reduction (§179-182). Interestingly, the court notes that the Covid-crisis artificially lowered emissions and that this “Covid effect” should therefore not be taken into consideration for evaluating those specific years. Furthermore, in the light of recent data that were not available prior to the first instance judgement, the condemnation does not apply to Wallonia, one of the three Belgian regions, as it successfully persuaded the judges of its commitment to align policies with climate science, showcasing a notable 38.5% reduction in greenhouse gas emissions in 2020 compared to 1990 levels.

Setting climate targets for the future: the battle of the effort sharing parameters

The decision then extends beyond past results, probing whether future climate targets are aligned with human rights. In contrast to the first judgement in the case, the court of appeal issued a specific injunction, mandating a reduction of at least 55% in overall emissions by 2030 relative to 1990 levels. Remarkably, the court asserts that judicial climate target setting is compatible with the separation of powers. However, this principle imposes limitations on the target level the judge can set. Specifically, the court maintains that “the principle of separation of powers prohibits the court from determining a GHG reduction rate that it would deem desirable or equitable in the light of Belgium’s historical responsibility” (§190, our translation). In simpler terms, the court considers that it may only set a 2030 climate target that derives from the least constraining burden-sharing key of the global 1,5° climate objective in which Belgium would “do its part”.

In particular, the court rejects the demand formulated by the plaintiffs for a higher target of “at least 61%”, emphasizing separation of powers concerns. To substantiate their claims, the plaintiffs lean on a study by Joeri Rogelj from the Grantham Institute, titled “Belgium’s national emission pathway in the context of the global remaining carbon budget”, published in March 2023. In his study, Rogelj takes the global residual carbon budget established by the IPCC’s 6th Assessment Report, which gives a two-in-three chance of meeting the threshold of a dangerous global warming of 1.5°C, i.e. 400 GtCO2, and deduces from it, according to different distribution methods, the remaining carbon budgets for Belgium. If we adopt the criterion of equal per capita emissions, advocating for a fair distribution where each individual worldwide shares an identical carbon budget, Belgium’s required reduction stands at a substantial 81%, factoring in its historical contributions. Although this approach aligns most closely with equity concerns, the study introduces an alternative, less congruent with global climate justice, known as “grandfathering”. This method posits that past emissions amplify future emission entitlements. Pursuing this avenue, the study suggests a reduction target of -61% for Belgium. According to the plaintiffs, this figure represents the absolute minimum imperative to effectively address the climate emergency, surpassing any realm of political discretion (for a comparison, see the Urgenda case, § 7.3.3).

This argument convinced the court: it considered that “grandfathering” is indeed a judicially appropriate allocation mechanism since it does not rely on contentious equity considerations. Why, then does the court refuse to set the target at -61%? The court’s rationale becomes clearer when examining the study’s underlying premise that authorities should aim for a two-thirds (67%) probability of limiting climate change to 1.5°C. This premise significantly influences the calculation of the global carbon budget, creating variations between a one-in-two chance scenario (resulting in a 500 GtCO2 budget) and a two-in-three chance scenario (limiting the budget to 400 GtCO2). Notably, the court highlights a lack of scientific consensus on this assumption, emphasizing that IPCC reports consider both a two-in-three probability and a 50% probability. It, therefore, opted for the second parameter when establishing Belgium’s minimal effort.

In conclusion, separation of power does not prevent the judiciary from setting mandatory targets for political authorities, but it does play a role in setting the magnitude of those targets. In particular, the court considers that it can only oblige authorities to pursue the “minimal contribution” according to the scientific consensus (i.e. IPCC reports) and political consensus on the international stage (as reflected in COPs). Authorities can – and probably should – go further than that, but this is beyond judicial reach. The judge can set a floor, not a ceiling. This implies that considerations of equity are excluded from the process of letting the judiciary define climate targets. Discussions on global justice are deemed politically contested and, therefore, fall outside the realm of judicial intervention. This reveals a tension between the judicialization of climate struggles and the demands for climate justice.

Back to the EU’s climate law?

The plaintiffs spent much effort to demonstrate why the EU’s climate policy should not be a reference. They framed the case as a violation of Articles 2 and 8 and of duty of care rather than as a violation of a legally binding EU climate target. Doing so made the court discuss human rights obligations much more than the first instance tribunal did. In the end, however, it is the 55% reduction target that represents the authorities’ minimal contribution according to the scientific consensus, consequently serving as the maximal injunction a judge can bestow upon the plaintiffs. Ironically, this target represents the legal objective set up at the  EU level. As a result, while the court considers that it is not bound to EU law when evaluating climate objectives to settle human rights matters (§161), it eventually reasserts the 55% target set in the EU’s climate law without giving weight to the objectives assigned specifically to Belgium. Future will tell whether the judges’ reasoning will hold: the Flemish minister of environment already announced its intention to challenge this judgement before the Court of Cassation.

SUGGESTED CITATION  Petel, Matthias; Vander Putten, Norman: The Belgian Climate Case: Navigating the Tensions Between Climate Justice and Separation of Powers, VerfBlog, 2023/12/05, https://verfassungsblog.de/the-belgian-climate-case/, DOI: 10.59704/f9b1ef7c677ed70c.

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