On July 27, the Secretary General of the United Nations declared that “the era of global warming has ended” and “the era of global boiling has arrived.” At the same time, the Copernicus Climate Change Service and the World Meteorological Organization announced that July would become the warmest month ever recorded on the planet. UNEP also published the report on global climate litigation, which reports a significant increase in climate causes in the last five years. And, that day, we learned of the pronouncement of the Supreme Court (TS) in the so-called “Spanish climate case”, a lawsuit promoted by Greenpeace, Ecologistas en Acción, Oxfam Intermón and CODA against the approved National Integrated Energy and Climate Plan (Pniec) by the Council of Ministers, on March 16, 2021.
The plaintiff organizations requested the Supreme Court to force the Government to increase the greenhouse gas (GHG) emission reduction target, set forth in the Pniec, from 23% by 2030 to at least 55%, with respect to to 1990 levels, in accordance with the objective of the Paris Agreement regarding not increasing the global temperature of the planet above 1.5 °C. At the same time, they requested that, secondarily, in the event that the Supreme Court did not make that decision, it declared, failing that, the total nullity of the Pniec. All this with the purpose of guaranteeing respect for human rights and the right to an adequate environment for present and future generations.
The judgment of the Supreme Court dismisses the claim in its entirety. This ruling is fundamentally based on a principle of administrative law in our country: the principle of discretion of the Administration. This principle consists of the freedom that it has to make decisions in those cases in which the powers of the Administration are not clearly delimited by law. Among the arguments presented by the plaintiff organizations, it was argued that they were not suing for “(…) the lack of adaptation of the Pniec to the European emission distribution regulations”, but for “(…) the lack of adaptation of the Pniec to international law and to the commitments acquired by Spain in the field of the UN”. In other words, this request to force the Government to increase the mitigation objective was based on a breach of the Paris Agreement, but not on a breach of EU Law. However, the requested objective, of at least 55%, derives from the objective established by the EU in its Climate Law.
The EU’s climate policy, since its inception, stems from its commitments to the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the Paris Agreement. As the Supreme Court points out in its ruling, the EU has been and is a world leader in the fight against climate change. However, the Supreme Court judgment does not allude to the origin of the emission reduction burden sharing system in the EU. With the signing of the Kyoto Protocol, the so-called “European bubble” was adopted, in accordance with the principle of “responsibilities common but differentiated. In this way, the reduction percentage adopted by the EU is collective and not for each member state. For example, under the first period (2005-2012) of the Kyoto Protocol, Spain could increase its emissions by up to 15%, while Germany had to reduce them by 21%. All of this was established with the aim of reducing total EU emissions by 8%, which was its commitment when signing said Protocol.
The claims of the plaintiffs are also based on science, but the Supreme Court declares that, according to our Constitution, it only has the power to control whether the Pniec conforms to the Law. Therefore, for the examination of the legality of the Pniec, “considerations of a dogmatic and scientific nature” are not applicable, says the Supreme Court. In court rulings from other countries, science was taken into account, as in the Urgenda case, in the Netherlands. The UNEP report on climate litigation shows that the largest number of cases have occurred in the US, specifically 1,550 of the 2,180 registered. A close reading of the US nationally determined contribution gives clues as to why so many lawsuits. We must bear in mind that legal systems are different in each country. For example, citizens in Spain cannot present an appeal for unconstitutionality against a Law that violates fundamental rights, while in Germany, some young people presented it against the Federal Climate Protection Law before the Constitutional Court of that country, which forced the government to establish reduction targets for 2040. However, the rulings handed down by courts in other countries are not applicable in Spain based on the principle of state sovereignty, which limits progress in climate negotiations.
To settle the case, the TS makes an analysis of the international regime for the fight against climate change. Thus, the ruling affirms that until the climate summit in Paris (COP 21) the Parties had not reached greater commitments than those established in the UNFCCC, omitting the Kyoto Protocol, adopted at COP3 in 1997, under which reached emission reduction levels above what was required (although it did not serve to prevent global emissions from increasing considerably, since it only obliges the countries of its annex B -mainly developed countries- to comply with the goals ). At the same time, the TS affirms that little has been achieved since the Paris summit, apart from pointing out the Book of Rules adopted at the Katowice COP and finalized at the Glasgow COP, which is essential for the application of the Paris Agreement. The legal regime for the protection of the climate system, as well as international law for the protection of the environment, has evolved for more than 50 years and is complex, which is why it is necessary to introduce these matters in the training programs of the judiciary, taking into account that the number of climatic and environmental disputes is increasing.
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Taking into account what was requested by the plaintiffs, the Supreme Court declares that the Paris Agreement does not contain any quantified emission reduction objective, granting broad discretion to the Parties to adopt mitigation measures, while the EU has established quantified objectives and progressive, as required by said Agreement, since initially its reduction commitment was 40%. The Supreme Court affirms that, if it demanded this increase, it would be imposing on the government the adoption “(…) of an economic policy very different from the one established in our country, forcing the Administration to reformulate said policy, which from the point of view of the powers of which it is the holder would entail an excessive invasion”.
When deciding on the protection of human rights that would be achieved with an increase in the mitigation objective, the judgment links it to the consequences that an increase in emission reductions of at least 55% would have for the economy of our country at the time and the privations to which the citizenry would be subjected. However, the ruling does not simultaneously analyze the impacts and economic losses generated by climate change itself. However, the sentence also declares the need to reduce global emissions by the entire international community, including developing countries, after fulfilling the financial commitment of developed countries to grant 100,000 million dollars to developing countries in 2020. We must remember that this will once again be one of the prominent issues on the agenda of the COP 28 in Dubai, under the item new quantified and collective objective of financing. After all, the EU’s contribution to global emissions as a whole represents 8%, so, in addition to ambitious climate action on its part, the rest of the states are required not only to adopt measures, but also to that they also apply them urgently.
Taking these and other reasons into account, the Supreme Court has declared that Spain’s mitigation objective is integrated and complies with the EU criteria, which cannot be considered arbitrary, and therefore dismisses the plaintiffs’ appeal.
Recently, and based on the principle of non-regression, the Government has proposed in the revision of the Pniec an increase in the mitigation objective of up to 32% by 2030. However, it is essential to progress in the application of the measures provided for in the Pniec to reach it and know if we are advancing in the achievement of that objective. For this, given the absence of carbon budgets in our Climate Change and Energy Transition Law, it is necessary for the Government to disseminate, in accordance with the requirements of the Governance Regulation on the Energy Union, the Pniec monitoring report that presented to the European Commission last March. Legislation and planning are essential parts of the fight against climate change, but their correct application and enforcement is the other part of the equation to protect the climate system, which is the ultimate goal of the UNFCCC.
Ana Barreira is a lawyer and director of the International Institute of Law and Environment
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