Guest Commentary: An Unexpected Success for Czech Climate Litigation

Eva Balounová *

Introduction

On June 15, 2022, the Prague Municipal Court, a first instance administrative court, decided in favor of the plaintiffs in the first Czech strategic climate case (Klimatická žaloba ČR v. Czech Republic) and ordered the Czech Republic’s ministries to take specific measures to reach a 55% GHG emissions reduction by 2030 (in comparison with the 1990 level). The court ruled that the failure to set specific mitigation measures to slow climate change, in accordance with the state’s obligations under European and international law, is unlawful and infringes the plaintiffs’ right to a favorable environment.

Although the defendant ministries and the plaintiffs already appealed on points of law to the Supreme Administrative Court, this landmark decision will have significant implications for future climate claims in the Czech Republic. Moreover, with this strategic litigation, the Czech Republic joins the list of countries where citizens are challenging governments’ overall responses to climate change. This blog post provides a preliminary analysis of the decision and discusses some interesting remarks made by the court.

Background to the claim

In April 2021, a group of Czech citizens filed a case against the national government for its inaction on climate change. The claim is grounded on the harms caused to the plaintiff’s human rights based on this inaction (specifically the constitutional right to a favorable environment, the right to local self-government, the right to property, the right to carry out economic activity, the right to health protection, and the right to private and family life). The plaintiffs include multiple entities led by The Czech Climate Litigation Association (Klimatická žaloba ČR), which was created in 2019 to bring this case. Other plaintiffs include a municipality, individual persons, and representative groups of citizens affected by climate change, such as farmers, foresters, and city residents. The defendants are the central government of the Czech Republic and four subsidiary ministries (Ministry of the Environment, Ministry of Industry and Trade, Ministry of Agriculture, and Ministry of Transport).

The administrative lawsuit was filed with the Prague Municipal Court as a case of “unlawful interference” under the Code of Administrative Justice. According to the applicants, the unlawful interference consisted of executive inaction in the area of climate protection, respectively by not taking mitigation and adaptation measures according to the obligations under the Paris Agreement. The inaction related to the defendants’ failure to set adequate climate protection goals in relevant strategic documents, draft relevant legislation (as the Czech Republic does not have a framework climate act), or, in the case of the government, coordinate and control the activities of ministries and other central government bodies. Therefore, the applicants sought protection against the alleged continuing “unlawful interference”, which should have commenced in 2017 when the Czech Republic became a party to the Paris Agreement. The applicants asked the court to order the defendants to take necessary and proportionate measures to reduce greenhouse gas emissions and to adapt to climate change within six months.

2022 Prague Municipal Court Decision

On June 15, 2022, the Prague Municipal Court, after a public hearing, upheld the mitigation claims made by plaintiffs but dismissed the claims on adaptation. Concerning mitigation, the court assessed the interference of the relevant ministries, consisting of the failure to provide specific mitigation measures leading to a 55% GHG emissions reduction by 2030 compared to 1990 levels, as unlawful. The defendant ministries were thus enjoined from continuing to interfere in such a way.

On standing

The court assessed that all the applicants, including the association and the municipality, had active legal standing to bring a claim based on the right to a favorable environment (as the association protects the rights of its members, the municipality of its citizens). The fact that the interference concerned the rights of a relatively indeterminate set of other persons (the population of the Czech Republic) did not in itself preclude the claim, as the adverse effects of climate change in the Czech Republic and Europe are so significant that the applicants were directly affected by them. Here, the Prague Municipal Court referred to the reasoning of the Berlin Administrative Court in the case Family Farmers and Greenpeace Germany v. Germany where the court stated that: “The mere fact that the effects of climate change affect a very large number of people does not rule out individual interest from the outset.”

On the claim against the government

The court declared the action against the government to be inadmissible, as the government does not have the status of an administrative authority under the Code of Administrative Justice because, in exercising its management function (coordinating the ministries in dealing with the climate crisis), it does not act in the field of public administration and cannot be subject to judicial review under the Code of Administrative Justice. This argumentation is based on the doctrine that the approval of various conceptual documents primarily addressed to public authorities (i.e. ministries in this case) and not the general public, is a result of governmental political decision, not an exercise of public administration.

Yet, the defendant ministries, unlike the government, meet the definition of an administrative authority, according to the court, as they are executive authorities. Hence, the claims against the central government as a whole were dismissed but the claims against the subsidiary ministries remained.

On adaptation measures

The court rejected the plaintiffs’ claim related to the failure to implement sufficient adaptation measures. Regarding the obligations to adapt, the court ruled that, under the Paris Agreement, these consist of increasing adaptive capacity, and not achieving specific targets by a certain date. Specifically, under EU law (Article 5 of the European Climate Law), the Czech Republic must adopt and implement a national adaptation strategy and plan based on analyses and up-to-date scientific knowledge. The defendants not only adopted an updated adaptation plan based on expert submissions in 2021 but also adopted new legislation (amendment of the Water Act, adoption of the Erosion Protection Degree). Therefore, in the view of the court, the defendants were making progress in the area of climate change adaptation.

On causation

The court decided that, if the defendants had properly fulfilled their obligations, climate change would have been milder, and averting dangerous climate change would have been more likely. The defendant’s failure to act was therefore a partial cause of the current adverse impacts of climate change in the world. In addition, the court stated that the individual responsibility of the parties to the Paris Agreement couldn’t be ruled out by reference to the level of other parties’ emission contributions. Such an approach would, according to the court, make effective legal protection impossible where the state in question is not a significant emitter of greenhouse gases on a global scale. The court argued that each country could be held accountable for its share of emissions and noted the principle of common but differentiated responsibilities. Finally, the court stated that the link between climate change and human (in)action is so compelling and narrow that, when considering the directness of the interference, the two are an inseparable whole.

On the right to a favorable environment

The court defined the right to a favorable environment (included in the Czech constitution, art. 35 of the Charter of Fundamental Rights and Freedoms of the Czech Republic) for the purposes of these proceedings as the right to live in climatic conditions (encompassed in the term ‘environment’) which allow the unhindered exercise of the needs of human life (the term ‘favorable’). Following the precautionary principle, citizens have the right to be concerned about the quality of their environment and do not have to wait for climate conditions so unfavorable that they do not allow their basic needs of life to be met. The right to a favorable environment is therefore also violated if there is a restriction on the fulfillment of the basic needs of life; there does not need to be a limitation of such needs.

The court relied on the evidence presented by the plaintiffs on the adverse effects of climate change (such as water scarcity, increase in average temperature, and associated health impacts such as infectious diseases, allergies, premature deaths and more frequent droughts, fires, and floods). The court summarized that the degree of adverse effects of climate change depends, among other things, on the place of residence (rural or urban area) and personal characteristics such as age, gender, health status and financial security. The increase in temperature is likely to affect vulnerable populations (elderly, children, pregnant women, and people suffering from cardiovascular diseases, diabetes, and respiratory problems, among others). Regarding young people, the court noted, based on the IPCC special report on the impacts of global warming of 1.5 °C from 2018 (IPCC report), that young people in Europe may experience anxiety associated with climate change.

The court referred to the judgment of the Supreme Court of the Netherlands in the Urgenda Foundation v. State of the Netherlands by recalling that the obligation to take appropriate measures under Articles 2 and 8 European Convention on Human Rights also includes the State’s obligation to take precautionary measures to avert danger, even if the occurrence of a disturbance is uncertain. Based on this, the Prague Municipal Court highlighted that global warming caused by GHG emissions adversely affects the climatic conditions necessary for human life, thereby interfering with the right to a favorable environment, as guaranteed by Article 35(1) of the Charter of Fundamental Rights and Freedoms of the Czech Republic. The court did not examine whether the applicants were also prejudiced in other rights.

On mitigation measures

Having said that, the Prague Municipal Court referred again to Urgenda and ruled that the state is obliged to adopt climate measures arising from international law and generally accepted scientific standards. According to the view of the court, the second sentence of Article 4(2) of the Paris Agreement imposes an obligation to implement mitigation measures aimed at achieving the objective of the nationally determined contributions (NDCs) of the parties to the agreement. The court analyzed the Czech Republic’s NDC and the European Union’s (EU) NDC (which sets out the Czech Republic’s NDC), which states that the EU and its Member States, acting collectively, commit to reducing GHG emissions by at least 55% by 2030 compared to 1990 levels. This obligation is, according to the court, sufficiently specific to be directly applicable and scrutinized under judicial review. In the view of the court, the EU NDC must be interpreted as an individual, not just an EU-wide obligation (this interpretation was based on the relevant Czech documents and the possibility of effective monitoring compliance with the Paris Agreement). The EU target is yet to be embodied in EU secondary law (already proposed in the Fit for 55 package, now in the legislative process). However, in the court’s view, the EU climate protection does not supersede protection under the Paris Agreement – the two instruments work side by side and may overlap, and the Czech Republic could even have a more ambitious commitment.

The court then examined whether the Czech Republic was properly complying with its obligation under the Paris Agreement in conjunction with the EU NDCs, namely whether it was implementing national mitigation measures leading to a reduction of GHG of at least 55% by 2030 compared to the year 1990. In this context, the Assessment of the Climate Protection Policy in the Czech Republic (POK Assessment) prepared by the Ministry of Environment in 2021 states that existing measures are only expected to lead to a 45.1% reduction by 2030 and that, to meet the 2030 target (55%), it will be necessary to maintain the effectiveness of existing measures and adopt additional GHG reduction measures. Additionally, according to the POK Assessment, 29% of the existing measures were not properly implemented. The court thus found that the defendants were in delay since December 18, 2020, when the UNFCCC Secretariat received an updated EU NDC.

Remedies

The court ordered the defendants to take specific mitigation measures to achieve a 55% reduction in GHG emissions by 2030 compared to 1990 levels. This differs from the order sought by the applicants. They demanded the adoption of necessary and reasonable measures within six months for both mitigation and adaptation to climate change, ensuring that the specific climate budget (of 800 Mt CO2 from January 2021 until the end of the century) is not exceeded. However, in the view of the court, the alleged carbon budget does not represent a specific commitment of the Czech Republic under the Paris Agreement because it is not based on a general consensus of the international community or credible science. The court stated that the global carbon budget drawn from the IPCC report is credible, unlike the method to calculate the national carbon budget contained in the evidence provided by the applicants. The court also did not set a time limit and instead of necessary and proportionate measures instructed the adoption of specific measures.

Final observations

The plaintiffs submitted significant new evidence, including an analysis and expert testimonials prepared for this case; however, in the end, the court based its decision on the IPCC report, the Paris Agreement, the EU NDC, the Czech constitutional system, and the POK Assessment from 2021.

The Prague Municipal Court also referred to other climate change cases – specifically to the Urgenda Foundation v. State of the Netherlands and the Family Farmers and Greenpeace Germany v. Germany. Similar to these, the Czech case is strategic climate-aligned litigation and a framework case against the national government concerning its overall response to climate change and seeking to enhance and enforce its climate commitments. This case also invoked human rights and did not challenge any specific climate law, as the Czech Republic does not yet have any framework climate act.

While the ministries object to the vagueness of the judgment (in their appeal), the court was clearly inspired by the decision in Urgenda Foundation v. State of the Netherlands and did not order a specific route to GHG reduction (and thus respected the separation of powers). Although the court did not uphold all of the plaintiffs’ claims, and it is not clear whether the Supreme Administrative Court will uphold or overturn the judgment, this first instance judgment is already an important step for future climate claims in the Czech Republic: success is possible and therefore worth a try.

* This blog post is part of the Sabin Center’s Peer Review Network of Global Climate Litigation and was edited by Maria Antonia Tigre. Eva Balounová is the rapporteur for the Czech Republic. The research for this blog post has been supported within the Lumina quaeruntur award of the Czech Academy of Sciences for the project “Climate law” conducted at the Institute of State and Law.