Next up in Climate Litigation: Belgian Court condemns Climate Change Policies of Belgian Federal and Regional Governments

White & Case LLP

As yet another sign of the surge of climate change litigation around the world, yesterday the Brussels Court of First Instance found the Belgian federal and regional governments in breach of their duty of care and human rights obligations by failing to implement sufficiently robust climate change policies. The landmark ruling did not impose penalties or concrete obligations.

The case was brought by the non-profit organisation Klimaatzaak against the Belgian federal government and three regional governments, all of which have competence for environmental matters. In its ruling, the Brussels Court of First Instance (the "Brussels Court") deemed not only the claim of Klimaatzaak admissible but also the supporting claim of 58,000 citizens claiming an interest in view of the risks and adverse consequences of climate change on their daily lives.

On the merits of the claim, the Brussels Court sided with the claimants and found that the Belgian governments failed to exercise prudence and diligence in the pursuit of their climate change policies, thus breaching their duty of care under Belgian tort law. The Brussels Court notably referred to the fact that Belgium would not attain its objectives to reduce emissions based on the numbers produced by the Belgian governments, the lack of proper climate change governance by and among the Belgian governments, and the repeated disregard by the Belgian governments of the European Union's admonishments in this regard, even though the Belgian governments are aware of the risks that climate change poses for the Belgian population. Based on these findings, the Brussels Court also considered that the Belgian governments did not take all necessary action to prevent the threats of climate change to the claimants' private lives. This was considered a 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.

The Brussels Court dismissed, however, the claimants' request to impose a specific obligation on the Belgian governments to reduce emissions by 2050 to zero by referring to the separation of powers in Belgium. Klimaatzaak has indicated that it intends to appeal this part of the ruling before the Brussels Court of Appeal and the European Court of Human Rights. Climate change litigation in Belgium is thus certain to continue in the upcoming years.

The Belgian climate case follows on the heels of earlier similar decisions issued by courts in the Netherlands, ordering the Dutch government to reduce emissions by at least 25 percent below 1990 levels by 2020 (the "Urgenda" case), and in Germany, ordering the German government to adjust emission targets in the Climate Change Act to protect fundamental rights of future generations.

In addition to these claims directed against governments, most recently, a Dutch court ordered private company Royal Dutch Shell to reduce its emissions, also based on a duty of care and human rights-based principles. As the pressure from activist litigation mounts, governments and companies can expect to face increasing legal challenges related to their emissions. Indeed, courts have emerged as a powerful tool in the fight against climate change.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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