Making Climate Law Work
Exploring how legal tools shape climate action in practice, from the Energy and Climate Change Law Institute and qLegal at Queen Mary University of London.
Making Climate Law Work
Law and governments: the power of climate litigation
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"This debate about the proper role of courts in relation to climate action will continue - both inside and outside the courtrooms."
Courts are increasingly being asked to do what governments won't. Hosts Alisa Ainonen and Nikola Duper sit down with King's Counsel Sudhanshu Swaroop of Twenty Essex to trace the growing power of climate litigation - from the landmark Urgenda ruling to the European Court of Human Rights' decision in Verein KlimaSeniorinnen. What do these cases mean for state accountability, the separation of powers, and the legal standing of those most affected by climate change? Sudhanshu maps what has shifted since Urgenda, and identifies three trends set to shape the courtroom battles ahead.
Link to our guest's social media accounts: LinkedIn: Sudhanshu Swaroop KC, linkedin.com/in/sudhanshu-swaroop-kc-5796822/
Key references:
- Sabin Center for Climate Change Law – The Climate Litigation Database
- Urgenda Foundation v. State of the Netherlands, Supreme Court of the Netherlands, 20 December 2019
- Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, European Court of Human Rights, 9 April 2024
Walking into a courtroom to litigate against your own government for failing to act on a climate change, not so long ago, the idea was absurd. Climate change was a matter to be solved by scientists and politicians and not judges.
SPEAKER_02In 2015, a Dutch foundation called Urgenda did something unpresented by suing the government for insufficient climate actions. And against the lots, Urenda won. The case became the first in the world in which a court required a government to reduce its greenhouse gas emissions.
SPEAKER_01Five years have passed since the Supreme Court ruled in favor of agenda in this landmark case. What has happened since? Have other courts followed the Dutch example or taken more cautious approach in stepping into climate policy? How far can courts go and what are the consequences of their decisions?
SPEAKER_02Welcome to an episode of Making Climate Law Work, a podcast from the Energy and Climate Change Law Institute and Q-Legal at Queen Mary University of London. My name is Selisa.
SPEAKER_01And my name is Nicola.
SPEAKER_02And we are both students of the Energy and Climate Change Law LLM at Queen Mary.
SPEAKER_01We are pleased to welcome our guest, Mr. Sudanshu Svarub KC from 20 Essex. Thank you very much for joining today, Mr. Sudanshu. Would you like to take a minute to introduce yourself to the audience?
SPEAKER_00Well, first, thank you very much to Queen Mary University and to the Energy and Climate Change Law Institute for the invitation to join this podcast. I work as a barrister, providing specialist legal advice and advocacy in court and in international arbitrations. I practice from 20 Essex chambers in London, and in 2016 I was appointed King's Counsel, which is a kind of senior barrister. My practice focuses on public international and commercial law, advising and representing states, corporations, NGOs.
SPEAKER_02Thank you, Sudan Shu. We are very excited to have you here. Let's start by talking a little bit more about urgenda. How would you describe the significance of this case?
SPEAKER_00I would emphasize three points in particular. First, the outcome. This was the first decision, certainly of any Supreme Court anywhere, to find that a government owes a legal duty derived from human rights law to protect its citizens from climate change. Secondly, the court's findings of fact. The Dutch Supreme Court accepted the proposition that man-made greenhouse gas emissions are causing the Earth to become warmer with potentially dangerous consequences. And the court made those findings based on expert scientific evidence, including the reports of the IPCC, the Intergovernmental Panel on Climate Change. This approach of relying on expert scientific evidence has served as a model for other climate litigation around the world. Third, the court's legal analysis. Now, the legal reasoning was innovative in various ways, but in my view, the most important feature was the approach to causation. Climate change has been described as a problem that is, I quote, super wicked. It is exceptionally complex with global causes and global effects. The Dutch Supreme Court said that none of this relieved the Dutch state from its legal duties. It said that under the ECHR, it is no defense that a state's contribution to global emissions is small, that if it were otherwise, then states could easily evade legal responsibility, and that each state has a legal duty to do its part. And again, that aspect of the court's reasoning has been influential in climate litigation against governments, both in Europe and elsewhere?
SPEAKER_02Indeed, according to data by Sabin Center for Climate Change Law, the number of cases filed in 2015 was around 120, and the number almost tripled by 2021 globally. Have there been many other successful cases after Urgenda, or was this case success perhaps impacted by the Netherlands struggle against rising sea levels?
SPEAKER_00It's true that the Netherlands is particularly vulnerable to rising sea levels. And in Urgenda, the Dutch Supreme Court referred specifically to the possible sharp rise in sea level, which, quote, could render parts of the Netherlands uninhabitable. However, in reaching its decision, the court also referred to other climate risks like extreme weather and significant erosion of ecosystems. The decision certainly cannot be read as being limited to countries that are exposed to sea level rise. And in any event, there have been various other successful climate cases against governments in different forms. So, for example, in Europe, in 2021, in the case of Neubauer against Germany, the German constitutional court said that Germany's climate targets were insufficient and breached a legal obligation to protect future generations. The court based its decision on a specific provision of the German constitution, Article 20A, which refers to the responsibility of the state towards future generations. So just pausing there, even within Europe, climate litigation is not just about the ECHR. Each country has its own constitutional and legal tradition, which may come into play. And it's also important to understand that successful climate cases are not limited to Europe. There have been significant cases around the world, including in the Americas, Africa, and Asia. So, for example, in 2024, South Korea's Constitutional Court said that the government's failure to set binding emissions targets breached the right to a healthy environment under the Korean Constitution and the rights of future generations. And just finally on this point, it's important to understand that this is not just about climate litigation in relation to overarching climate targets. So, for example, in the UK and elsewhere, there have been numerous public law challenges to infrastructure projects, some of them successful, which raise issues of climate policy. One ongoing case in the UK concerns the expansion of one of London's airports, where it's being argued that the environmental impact assessment failed to take account sufficiently of increased greenhouse gas emissions. So those kinds of cases don't attract the kind of headlines like Urgenda, but they are still significant.
SPEAKER_02Absolutely, thank you. We have a strong Europe presentation in this uh podcast recording. Um, Nicola, you come from Bosnia-Herzegovina. Do you have any climate litigation cases in your country?
SPEAKER_01Oh well, uh judicial practice in this field remains quite underdeveloped in Bosnia and Herzegovina, even though there is still no dedicated climate change act. But what we what we do have is a quite fragmented legal framework that could at least in theory support climate-related litigation. For example, the law on civil procedure allows for collective protection of rights related to the environmental harm, but only through a special law governing this field. But the thing is that this law has not yet been adopted. As a result, these mechanisms exist on paper but are not fully operational in practice. At the same time, Bosnia is expected to adopt a climate change act in the future. This is uh linked both to its international commitments under the Paris Agreement and to its EU accession process. So while litigation remains very limited for now, the legal foundations for the future developments are gradually being put in place, I would say.
SPEAKER_02Yes.
SPEAKER_01And what about Finland, Alicia?
SPEAKER_02Well, I'd say in Finland we're a bit ahead of Bosnia in this respect. Um, we have a climate act that sets out national climate targets and framework for climate policy planning. Since 2022, the Act has included a section on right to appeal so that the government decisions on climate policy planning under the Act may be appealed by certain parties specified in the law, including, for example, environmental associations. So far, this right has been tested twice in the Supreme Administrative Court by organizations. On the first occasion, the court did not examine the appeal because it found that the decision in question, the climate annual report, was not a decision that could be appealed. On the second occasion, the appellants were claiming that based on the climate annual report, the government was not taking sufficient actions to reach the reduction goals of the Climate Act. And this time the appeal was examined. In this respect, the court especially took into account the European Court of Human Rights Klimasenior judgment that we will be discussing later in this episode.
SPEAKER_01And please tell us, was the second case successful?
SPEAKER_02No, the appeal was dismissed because the court found that it was not yet possible to assess whether the measures were in fact insufficient. The court stated that under the constitutional principle on the separation of powers, the threshold must be high for a court to find that the government has acted unlawfully and violated human rights in this way.
SPEAKER_01That's very insightful, actually. And let's now go back to Urgenda, Mr. Sudan Shu. We know that court decisions was uh actually the court decision was legally binding for the Dutch government, but actually, what did this mean in practice?
SPEAKER_00So I'm I'm not a Dutch lawyer, so I can't pretend to try and give you a comprehensive answer to that question. But one consequence was that in December 2019, the Netherlands introduced a law to phase out coal-fueled power stations by 2030. And I understand that that law was passed at least in part due to the pressure created by the uh by this particular litigation. As a result of that law, uh coal-fueled power stations had to either close or convert to another form of fuel, such as biomass.
SPEAKER_02Yeah, this is interesting because phasing out coal in turn resulted in various claims from the companies that owned these major coal plants as they were forced to shut down them. Could you tell a bit more about this?
SPEAKER_00Sure. Following the coal phase-out law, two German energy companies, RWE and Unipa, who had invested in coal-fueled power stations in the Netherlands, brought claims directly against the Netherlands, claims which were founded on international investment treaties. I will just try and explain briefly what an investment treaty claim is. So assume that a company from State A invests money in some business venture in State B. An investment treaty is an agreement between states A and B, which provide a legal basis for the investor from State A to sue State B directly if State B breaches certain basic promises that are contained in the treaty. For example, a promise not to expropriate the assets of the investor. These investment treaties also provide a mechanism for such claims to be brought directly against the state in international arbitration. In this case, RWE and UniPA argued that the Dutch coal phase-out law had caused substantial damage to their investments and sued the Netherlands for sums understood to be in excess of $1 billion. I understand that in both cases, both RWE and UNIPA, the cases were eventually withdrawn. However, this saga illustrates a wider dilemma faced by other states. In short, they are stuck between the rock of being sued by NGOs for having weak climate policies on one hand, but then they are stuck on the other hand with the hard place of being sued by corporations for having strong climate policies.
SPEAKER_02Yeah, exactly. And we now see a trend of countries leaving major investment treaties, the Energy Charter Treaty, for example, but I believe this would be an interesting discussion for another episode. So we will have to leave it there.
SPEAKER_01Okay, I would agree. And let's now move further into the climate litigation. Another groundbreaking case to discuss here is the Klimasignorinen case, a group of Swiss women who took the case against the government of Switzerland to the European Court of Human Rights.
SPEAKER_02The group was claiming that the Swiss government was not taking sufficient actions to meet its climate goals. Switzerland had, for example, missed the 2020 emission reduction target under their CO2 Act. The woman argued that the heat waves made worse by climate crisis threatened their health and often forced them to remain indoors, restricting their ability to go out and enjoy a social and active life. They considered there to be a breach of Article II, Right to Life, and Article 8, right to respect for private and family life of the European Convention of Human Rights.
SPEAKER_01The court, however, ruled in favor of the women. The court found that Switzerland failed in its positive obligation to protect its citizens from climate change and required a state to reassess its insufficient climate change goals.
SPEAKER_00Sure. So the court's approach to standing was novel. Under the court's well-established case law, for an individual applicant to have victim status, that applicant must show that they have been directly affected by the alleged violation. And that the harm in question has reached a minimum threshold of severity. The court has said repeatedly that it does not recognize the concept of an actio popularis, meaning a right to bring an ECHR claim in the abstract, regardless of whether the applicant has personally suffered harm. In this case, the court held that the individual applicants themselves did not meet its established criteria because they personally had not been exposed to a risk of harm with a sufficient degree of intensity to engage Article 8, which was the article in question, the right to family and home. However, the court then said that the claim was also being brought, not just by individual people, but by an association, Verein Klimasignoren, which is a non-profit association established under Swiss law to promote climate protection. The court held that this association did have standing, even though the individual members did not. And instead it had standing provided that certain conditions were met. But this decision on this aspect standing has been criticized because it's been said that it sets a very low bar for associations or organisations to bring claims to the European court, and that what the court has done is effectively introduce an actio popularis, that is a right to bring an abstract action, at least in relation to climate change, by the back door.
SPEAKER_02Right. And how did the court assess the claim in itself? What made this case successful?
SPEAKER_00The court based its decision on Article VIII, as I've mentioned, the right to family and home. The court said that states have a positive obligation under Article VIII to protect against climate change. And in reaching that conclusion, the court expanded its existing case law on environmental issues, which so far the court had only applied to isolated cases of environmental harm, never to climate change. The court then formulated a series of specific positive obligations on states in relation to climate, including an obligation to adopt general measures specifying a target timeline for achieving carbon neutrality, in other words, net zero, to set out intermediate emissions reduction targets and pathways, and to provide evidence showing whether the state has complied or is in the process of complying with these targets. Notably, the court did not specify any minimum target timeline that states must adopt. Instead, the court said it is up to the discretion of states to define their own adequate pathways for reaching carbon neutrality, depending on the sources and levels of emissions and all other relevant factors within their jurisdiction.
SPEAKER_01Thank you, Mr. Sudancho. This was really insightful. Now, what we know is that this case concerns Switzerland, whose emissions are a very small part in this big picture. But how would you actually explain the importance of this ruling and the impacts it has had in other jurisdictions?
SPEAKER_00Bearing in mind this decision only came out in 2024, it's still early days to see how this all works out. But within Europe, I understand that there are already cases where this judgment has been cited to various domestic European courts in support of climate claims against governments. And it's likely that we will see more of such cases, both challenging government emissions targets or the lack of such targets, and challenging government compliance with such targets. We may also see uh claims outside Europe where claimants try to apply the reasoning in the Klima Signorinen case by analogy to other human rights uh and constitutional uh instruments. It's it's it's it's very uh it's far from unusual for human rights decisions from one treaty to be cited by analogy uh under other treaties or other instruments, particularly where the text of the documents are similar. And we might also see the judgment being cited to support claims that associations or organizations have standing to bring claims to try and get around the otherwise uh restrictive victim status threshold within established European uh human rights case law.
SPEAKER_02Yes, indeed. As I mentioned in the beginning, this case was also cited by the Finnish court.
SPEAKER_01But what both of these cases, Urgenda and Klimaseniorin, have in common is that they faced a lot of criticism on the principle of separation of powers. Uh actually, judiciary was said to overstep its powers by interfering to the political issue of climate change. And Mr. Sudanshi, what do you think? Is there a risk of letting courts rather than legislators to set environmental targets?
SPEAKER_00This is a fundamental issue. In uh Klimas Seniorinen, the European Court of Human Rights tried to address this point head-on. The court acknowledged that courts cannot replace the legislative and executive branches of government, but then said, I quote, however, democracy cannot be reduced to the will of the majority of the electorate and elected representatives in disregard of the requirements of the rule of law. In uh Urgenda, the Dutch Supreme Court made a similar point in the context of the Dutch constitution, stating that, I quote, the protection of human rights that the European Convention provides is an essential component of a democratic state under the rule of law. That said, these views may be contrasted with the partly dissenting opinion of Judge Eica, the UK judge in the Klimas-Seniorinen case. He said, he argued, that the majority of the judges in that case had created a new obligation in relation to climate change that was not justified by the court's existing case law, and that the court had departed from its traditional approach of giving states a wide margin of appreciation in relation to complex social and technical. Areas. Part of the problem here is that climate change is quite unlike other environmental issues that courts have to deal with, such as a particular factory causing pollution within a discrete geographical area. When setting climate targets and when trying to implement those targets, governments and parliaments have to make a series of complex choices. Choices about public spending, about the allocation of benefits and the imposition of burdens. It's fair to say that this debate about the proper role of court in relation to climate action will continue, both inside and outside the courtroom.
SPEAKER_02Thank you. This takes us nicely to our next topic of human rights. So climate litigation cases are often reasoned with the state's obligation to protect human rights. However, human rights instruments such as the European Convention on Human Rights or the Conventions on Civil and Political Rights or Economic, Social and Cultural Rights do not include a right to a clean environment as a human right. Instead, the courts have been interpreting the right to life and right to private and family life as including environmental protection. Sudanchu, how has this interpretation developed?
SPEAKER_00Okay, I'll answer by focusing on the ECHR. It is true that the ECHR in its text says nothing expressly about the environment. However, the European Court of Human Rights has developed a line of case law applying Articles 2 and 8 of the Convention to issues of environmental harm, such as where a particular industrial activity is said to be causing pollution within a defined area. In relation to Article 2, the right to life, the court has held that states have a positive obligation to act where specific environmental harm is causing a real and imminent risk to life. In relation to Article 8, the right to family and home, the court has held that states have a positive obligation to act where environmental harm is sufficiently serious so as to affect a person's enjoyment of their right to respect for private and family life and their home. In Klimaseniorinen, the court applied and extended this case law in relation to Article 8. It didn't ultimately decide the case under Article 2, it focused on Article 8, and said that in the context of climate change, the existing environmental case law can be extended to apply to climate change. And therefore it said Article 8, quote, must be seen as encompassing a right for individuals to effective protection by the state authorities from serious adverse effects of climate change on their life, health, well-being, and quality of life.
SPEAKER_01Okay, let's now see what is the future of climate litigation. We have established that courts have an increasingly important role in the combat against climate change, but this doesn't come without challenges. To conclude this episode, let's turn our attention to the future. Mr. Sudanshu, what are the trends you expect to see in climate litigation in the years ahead?
SPEAKER_02I also believe we cannot go without mentioning the impact of the International Court of Justice advisory opinion from July 25, recognizing that based on best available science, climate change poses an existential threat and states must act.
SPEAKER_00Thank you. I suggest three trends in particular. First, in courts around the world, we will continue to see claims brought by individuals and NGOs against governments, challenging climate targets or the lack of such targets, and the and also challenging action in implementing those targets. The basis of those claims will depend on the particular constitutional and public law framework of the individual state. However, we will it within uh uh states that are parties to the ECHR, we will continue to see claimants trying to test the limits of the Klima Senior judgment. Secondly, there is now the possibility of claims by states against other states under international law. Uh Alyssa mentioned the ICJ advisory opinion. So on the 23rd of July 2025, the International Court of Justice handed down its advisory opinion on the legal obligations of states in relation to climate. There is a lot to unpack in that opinion, and there's no time to do so today. But for present purposes, it should be noted that the court said that states have obligations under international law to take actions to protect against climate change, and importantly, that a failure by a state to comply with its obligations may amount to an internationally wrongful act attributable to that state under international law. So this raises the possibility of states that have been injured by climate change bringing claims against other states for allegedly uh alleged international wrongful acts that have damaged the climate system. Third, there is the ongoing possibility of claims against corporations and their directors. There are already many examples of such claims around the world, which have relied, for example, on tort law and company law. And these kinds of claims generally, so far, have enjoyed limited success. But what I think we may start to see more of is claims which focus not just on the harm that companies cause the climate, but on the harm that climate is causing to companies. For example, we may see claims that directors and auditors have failed properly to account the future impacts of climate change on their business models, on their supply chains, and on the valuation of their assets. But these are issues that I think deserve a whole podcast to themselves.
SPEAKER_02Yes, exactly. We'll be discussing climate change and corporations on another episode of this podcast. But I think it's time to wrap up today's episode. Thank you very much for joining us and sharing your expertise and insights on this complex but important topic.
SPEAKER_01Thank you, Mr. Sudancho, and thank you all for listening, and welcome back for the next episode of our podcast.
SPEAKER_00Thank you, it's been a pleasure.