What is meant by ‘climate litigation’?
According to the United Nations Environment Program (UNEP), climate litigation refers to cases brought before administrative, judicial and other investigatory bodies that raise issues of law or fact regarding the science of climate change and climate change mitigation and adaptation efforts.
For more information, see UN environment programme.
What are the current global trends in climate litigation?
In June 2022, the London School of Economics (LSE) published a report on global trends in climate litigation. This report looks at developments in climate litigation from May 2021 to May 2022 and identifies the areas where climate litigation cases are likely to increase in the future.
The number of climate litigation cases in the world has more than doubled since 2015. The total number of cases was over 2,000 in May 2022, with approximately one fourth of them being filed between 2020 and 2022. Outside the United States, Australia, the UK and the EU remain the jurisdictions with the highest volume of cases.
Climate litigation cases are often being used to enforce or enhance climate commitments made by governments. Recently, there has also been a noticeable increase in climate cases against fossil fuel companies as well as corporate actors active in the plastics, food and agriculture, finance and transport sectors. Another noticeable increase is the number of climate litigation cases with the strategic ambition to increase action from countries and scale back the use of fossil fuels in the energy sector.
According to the LSE report on global trends in climate litigation, there are five areas to watch:
- Cases involving personal responsibility;
- Cases challenging commitments that over-rely on greenhouse gas removals or negative emissions technologies;
- Cases focused on short-lived climate pollutants;
- Cases explicitly concerned with the climate and biodiversity nexus; and
- Strategies exploring legal recourse for the loss and damage resulting from climate change.
For more information, read Global trends in climate change litigation: 2022 snapshot.
What kind of climate cases have been initiated in Belgium so far?
According to climatecasechart.com, a U.S. website providing a global database of climate change case law per jurisdiction, and climate-laws.org, a website of the Grantham Research Institute at LSE and the Sabin Center at Columbia Law School also providing a global database of climate litigation cases per jurisdiction, five climate cases can be found in Belgium:
This case concerns the question whether federal and regional governments can be compelled to reduce greenhouse gas emissions.
The case was brought by an organization of concerned citizens (Klimaatzaak) and 58,000 citizen co-plaintiffs, arguing that Belgian law requires the Belgian government's approach to reducing greenhouse gas emissions to be more aggressive. The case was initiated against the Belgian State, the Walloon Region, the Flemish Region, and the Brussels-Capital Region as defendants.
The plaintiffs called for greenhouse gas reductions of 40% below 1990 levels by 2020 and 87.5% below 1990 levels by 2050. The plaintiffs requested a court injunction directing the Belgian governments to reduce emissions 42 to 48% in 2025 and at least 55 to 65% in 2030.
On 17 June 2021, the Brussels court of first instance decided that the federal state and the three regions jointly and individually breached their duty of care by failing to take necessary measures to prevent the harmful effects of climate change, but declined to set specific emission reduction targets on separation of powers grounds.
On 17 November 2021, Klimaatzaak appealed the decision of the Brussels court of first instance refusing to set specific binding targets related to the reduction of greenhouse gas emissions over time.
This case concerned the question whether the Belgian National Bank's purchasing of bonds from fossil fuel companies violated EU law.
On 13 April 2021, ClientEarth initiated court proceedings against the Belgian National Bank claiming that the latter would fail to meet environmental, climate, and human rights requirements when purchasing bonds from fossil fuel and other greenhouse-gas intensive companies. In December 2021, the Brussels court of first instance dismissed ClientEarth's claim on procedural grounds. Early 2022, ClientEarth appealed this decision but later withdrew its claim.
This case concerned the question whether FIFA's advertising of the 2022 World Cup in Qatar as "carbon neutral" was misleading and false.
In December 2022, Carbon Market Watch, a not-for-profit association, filed a complaint against the Fédération Internationale de Football Association (FIFA) with the Belgian advertisement ethics panel. Similar claims were simultaneously filed in France, the Netherlands, the United Kingdom, and Switzerland. Carbon Market Watch alleged that FIFA's advertising of the 2022 World Cup in Qatar as "carbon neutral" was misleading and false. The relevant authorities in Belgium, France, the Netherlands, the United Kingdom, and Switzerland announced that all five complaints would be examined jointly by the Swiss authorities.
This case concerned the question whether a new gas station project in Boechout complied with the climate objectives under the Flemish Code for Spatial Planning.
On 3 April 2019, a company requested an environmental permit to build and exploit a new gas station in Boechout, a municipality located in the Flemish province of Antwerp. The municipal authority refused to deliver the permit because the envisaged gas station was not “future proof”. It did not include a recharge point for electric cars nor did it provide for compressed natural gas.
The requesting company appealed this decision, but the local authorities again rendered a negative decision. However, the provincial government eventually decided, on appeal, that the project should receive an environmental permit on the ground that the reason used by the local authorities to refuse to deliver the permit was illegal.
After the permit had been delivered, prospective neighbors of the envisioned gas station sought to suspend and annul the environmental permit before the Council for Permit Disputes. The Council decided that the environmental permit was not carefully motivated because there was no research on whether the project would be compatible with the environmental objectives of the community of Boechout or whether mitigating measures would be sufficient to compensate the negative advice of the community of Boechout. On this ground, the Council suspended the decision of the provincial government on 22 April 2021.
In the proceedings on the merits, which sought to annul the permit, the Council found on 9 December 2021 that there was insufficient justification with regard to the gas station’s compatibility with the residential area in which it was to be built and with its immediate surroundings and, as such, annulled the environmental permit.
This case concerns the question whether the approval by the Flemish authorities of INEOS' Project One is illegal under EU and Belgian laws due to INEOS' inadequate assessment of how the project would impact the climate.
In 2021, Flemish authorities announced their approval of petrochemicals giant INEOS’ plastics plant project ('Project One') in the Port of Antwerp.
ClientEarth and 13 other NGOs argue that this project would have tremendous and inadequately assessed environmental impacts, namely in the form of plastic pollution and climate change exacerbation. As a consequence of these concerns, these NGOs appealed the permit with the Environmental Ministry of Flanders in early 2022. The appeal was dismissed in June 2022.
A month later, the NGOs announced that they would bring the Flemish authorities to court to challenge the decision to dismiss their appeal. They argue that INEOS failed to present an adequate assessment of how the project would impact the climate, nature and surrounding air quality and that the Flemish authorities approved the project without first fully assessing its impacts, making the approval illegal according to EU and national laws. These proceedings are currently pending before the Council of Permit Disputes.
This list of Belgian climate litigation cases is not exhaustive.
Another known climate litigation case in Belgium is “De Luchtzaak”. In 2017, Greenpeace initiated court proceedings before the Brussels court of first instance against the Flemish government for doing too little against air pollution, and specifically against the exceedance of European standards for nitrogen dioxide (NO2). The Brussels court of first instance, the Brussels attachment judge and the Brussels court of appeal all ruled in favor of Greenpeace.
How will climate litigation in Belgium evolve?
The above overview demonstrates that climate litigation is clearly on the rise in Belgium. However, this is nothing yet compared to the spike in climate cases that can be seen in other jurisdictions, such as the United States, Australia, the UK and the Netherlands. Whereas in Belgium most climate litigation cases have been directed against the government so far, other jurisdictions demonstrate that climate litigation is on the rise against corporations in different industries too.
In the Netherlands, for example, climate litigation cases have been brought against large corporations, such as Shell (as large producer of fossil fuels), KLM (as large consumer of fossil fuels) and Pension Fund ABP (as major financier of / investor in the fossil industry).
In the landmark case Milieudefensie et al. v. Royal Dutch Shell plc., the court of The Hague ordered Shell on 26 May 2021 to reduce its emissions with 45% by 2030, relative to 2019, across all activities, including both its own emissions and end-use emissions, on the basis of the unwritten standard of care. The court held that there is broad international consensus (soft law) that every company should independently work towards the Paris target of net zero emissions by 2050. The court held that because of the weighty interests (fundamental rights) served by the reduction obligation, Shell must do its part in respect of the emissions over which it has control and influence over, and that this is an independent responsibility of Shell, from whom - because of Shell's specific circumstances - much can be expected.
It is likely that this trend of climate litigation cases against corporations will also continue in Belgium. Belgian banks, institutional investors and other large corporations should be aware of this risk.
Should you require any assistance in the field of climate litigation, please contact us.
Other articles in this series
- ESG litigation – the criminal angle of greenwashing? | Loyens & Loeff (loyensloeff.com)
- ESG considerations to restructure your business | Loyens & Loeff (loyensloeff.com)
- Sustainability considerations in B2C relationships | Loyens & Loeff (loyensloeff.com)
- Belgian temporary insolvency law measures protecting energy-intensive companies | Loyens & Loeff (loyensloeff.com)
- Trends in climate litigation | Loyens & Loeff (loyensloeff.com)
- Enforcing ESG obligations in supply contracts | Loyens & Loeff (loyensloeff.com)