The French-speaking Court of First Instance in Brussels (‘the Court’) has decided that the Belgian public authorities had failed to reduce greenhouse gas (GHG) emissions. However, unlike a recent case before the Dutch courts, the Court found that it is not for the judiciary to decide how Belgium should go about reducing its GHG emissions. Instead this is a matter to be decided by Belgium’s legislative and executive bodies.(English translation of the decision here)
In proceedings similar to the Urgenda case in the Netherlands against the Dutch state, recently followed by the Shell case, the Belgian judge took a different position on GHG emission reduction injunction measures claimed by an environmental association (Klimaatzaak vzw) and a group of individuals against the Belgian state and the three regions.
Regarding certain commitments to reduce GHG emissions by 2020 (as well as forecasts suggesting non-compliance with the goals for 2030 and 2050), the judge concluded that the Belgian state and the three regions had breached Article 1382 of the Civil Code, and Articles 2 and 8 of the European Convention on Human Rights (the ECHR).
However, this did not mean that the Belgian judge could decide how Belgium should reduce its GHG emissions in the future. Based on the separation of powers, this is a matter for the discretion of the legislative and executive powers.
Parties are considering appealing the decision.
The Belgian decision deviates from the recent approach taken by the French administrative judge who, after deciding that the French state is partly responsible for the ecological damage resulting from climate change, ordered it to pay one symbolic euro to the four claimant NGOs. The judge also said he would wait two months before deciding whether it would be necessary to order the French government to take steps to meet its commitments to reduce GHG emissions. Parties are now exchanging briefs on this question.
The approach taken by the Belgian court resonates with that taken by the English court in 2018 (at first instance) and 2019 (on appeal) to dismiss a claim brought by the NGO Plan B for a judicial review of the UK government’s decision not to revise a 2050 carbon-reduction target in light of new international law and scientific developments, on the basis that the government should be allowed a measure of discretion in how it sets such targets. A new claim has, however, recently been launched by three young adults, supported by Plan B and the NGO Stop the Maangamizi Campaign, in which the UK government’s roadmap to net zero emissions by 2050 is being challenged on human rights grounds (namely the rights to life and to private and family life under Articles 2 and 8 ECHR).
In June 2015, Klimaatzaak filed a lawsuit before the Court, joined by 8,421 citizens, against the Belgian state and the Flemish, Walloon and Brussels-Capital regions (‘the climate case’).
The objective of the climate case was to condemn the Belgian state and the three regions for failing to reduce GHG emissions and to enjoin them to take the necessary measures to reduce GHG emissions by the following amounts:
- by 2025, a reduction of 48 per cent (or at least 42 per cent) compared to 1990 levels;
- by 2030, a reduction of 65 per cent (or at least 55 per cent) compared to 1990 levels; and
- by 2050, net zero emissions.
This dispute is a continuation of the Urgenda and Shell cases in the Netherlands.
Two grounds were invoked to justify the conviction of the Belgian state and the three regions, based respectively on the violation of:
- the standard of care and diligence applicable in matters of extra-contractual liability (Articles 1382 and 1383 of the Civil Code); and
- Articles 2 (right to life) and 8 (right to private and family life) of the ECHR and Articles 6 (right to life) and 24 (right to health) of the International Convention on the Rights of the Child.
On the extra-contractual liability of the Belgian state and the regions
The Court began by recalling that, under Belgian law, the liability of both the executive and the legislature may be based on the violation of:
- a legal norm (national or international with direct effect), requiring the administrative authority or the legislature to act (or refrain from acting) in a certain manner; or
- the standard of the normally prudent and diligent administrative authority or legislature in the same circumstances (the general standard of care). Violation of an international standard without direct effect may undermine the general standard of care.
In this case, the Court decided that the Belgian state and the three regions, although they had ‘full knowledge of the certain risk of dangerous climate change for the population of the country’, had committed a fault by not respecting the standard of care and diligence that is imposed on them with regard the three following findings:
1. The results of the GHG emission reduction efforts were mixed:
- For the period 2008-2012, Belgium had met its European commitments to reduce its GHG emissions by 7.5 per cent compared to 1990.
- For the period 2013-2020, Belgium had not met: its international obligation (in the Doha amendment to the Kyoto Protocol) to reduce its overall GHG emissions by 20 per cent compared to 1990 levels (at least, by 2019); its EU obligations (as set out in Decision 406/2009/EC) to meet certain GHG emission reduction commitments by 2020, in particular with regard to reducing its GHG emissions from activities not subject to the Emissions Trading Scheme (‘the non-ETS sector’) since the latest reports from the European Commission indicate that ‘Belgium is not on track to meet its 2020 climate target’; and its internal obligations (in the co-operation agreement of 12 February 2018 between the Belgian state and the three regions to reduce their GHG emissions in the non-ETS sector), since the Flemish region (which has the only valuable result for 2020) had not complied with its obligation to reduce GHG emissions in the non-ETS sector even though the federal state had achieved the reduction targets it set in that agreement.
- For the period 2020-2030 and 2030-2050, even the most favourable projections indicate that Belgium will not meet its EU GHG emission reduction obligations (as imposed by Regulation 2018/842, which aims to reduce the GHG emissions of the non-ETS sector by 35 per cent by 2030 in comparison 2005 and carbon neutrality by 2050) which will require to implement ‘radical or even unrealistic measures from 2030 onwards in order to achieve carbon neutrality by 2050’.
2. The fact that competences in the field of climate change are shared between the Belgian state and the three regions does not exempt these entities from their (internal, European or international) obligations to reduce GHG emissions. In this respect, these entities have an obligation to co-operate, which is an integral part of the standard of care and diligence. On this point, although each entity has adopted a wide range of measures, these do not mask the ‘failure’ of Belgian climate governance, which has been denounced by various public institutions (the Court of Auditors in 2009, the consultative organs of the Belgian state and the three regions in 2014, the Environment Public Service in 2015, the Senate in 2017, the Health Public Service in 2018, etc.).
3. The EU has regularly warned Belgium about its weak GHG reductions.
On the violation of Articles 2 and 8 of the ECHR
After noting that, given the current state of climate science, there can no doubt that climate change threatens to have a direct adverse effect on the daily lives of the present and future generations of the inhabitants of Belgium (in particular a rise in the level of the North Sea and an increase in health problems), the Court decided that:
- The global dimension of this issue does not exempt Belgium from its obligations under Articles 2 and 8 of the ECHR (as the Dutch Supreme Court decided in the Urgenda case).
- These two articles impose a positive obligation on public authorities to take the necessary measures to remedy and prevent the adverse effects of dangerous climate change on the claimants’ right to life (Article 2) and right to private and family life (Article 8). Appropriate measures can be of two kinds: 'mitigation' measures aimed at preventing the danger from materialising; or adaptation measures aimed at cushioning or reducing its effects. For the Court, GHG emission reduction measures are 'mitigation' measures.
- These obligations only concern the measures to be taken but not the result to be achieved. The public authorities have a margin of appreciation as to the result to be achieved, and judicial control is only marginal.
In the present case, on the basis of the same three findings on which it accuses the Belgian state and the three regions of fault, the Court concluded that they had not taken the necessary measures to prevent the effects of climate change on the claimants’ rights under Articles 2 and 8.
On the rejection of the requested injunctive relief because the public authorities have discretionary powers
The Court considered that a judge is certainly competent to establish a fault committed by a public authority, even in the exercise of its discretionary power. However, the judge cannot, on this occasion, deprive the latter of its political freedom, nor substitute themselves for it in the exercise of its discretionary power.
On this basis, the Court rejected the requested GHG emission reduction injunctions because no international legal act or EU law directly imposes on Belgium the obligation to reduce its GHG emissions up to the different percentages targeted by the claimants (ie beyond 2020).
In the Court's view, in the absence of a binding text, how Belgium will participate in global GHG emission reduction targets in the future is currently a matter for the discretion of its legislative and executive bodies. More specifically, the Court points out that:
- the parties to the UNFCCC failed to agree on successor commitments to Kyoto;
- the Paris Agreement does not provide for quantified and individualised emission reduction targets;
- even if there is a common objective in international law to keep the increase in global temperature below a certain level, this is soft law, leaving it to individual states to determine the means of contributing to it; and
- in none of their governmental declarations have the Belgian state and the three regions made any legally binding commitments in this respect.