[Artículo originalmente publicado en El País]
- The plaintiffs’ claims are based on science, but the Supreme Court states that, according to our Constitution, it only has the power to assess whether the plan under discussion complies with the Law.
On July 27th, 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 was set to become the hottest month ever recorded on the planet. The UN Environment Programme (UNEP) also published a report on global climate litigation, which reported a significant increase in climate-related cases over the past five years. On that day, the pronouncement of the Supreme Court (SC) in the so-called “Spanish climate case” came to light, a litigation driven by Greenpeace, Ecologistas en Acción, Oxfam Intermón, and CODA against the National Integrated Energy and Climate Plan (Pniec) approved by the Council of Ministers on March 16, 2021.
The plaintiff organizations asked the SC to compel the Government to increase the greenhouse gas emissions reduction target set in the Pniec from 23% by 2030 to at least 55%, relative to 1990 levels, in line with the goals of the Paris Agreement to not exceed a global temperature increase of 1.5°C. Additionally, they requested that, alternatively, if the SC did not make that decision, it should declare the complete nullity of the Pniec. All of this was aimed at ensuring respect for human rights and the right to a suitable environment for present and future generations.
The SC’s judgment dismisses the lawsuit in its entirety. This ruling is primarily based on a principle of administrative law in our country: the principle of discretion of the Administration. This principle entails the freedom the Administration has to make decisions in cases where the powers of the Administration are not clearly defined by laws. Among the arguments presented by the plaintiff organizations, it was argued that they were not demanding for “(…) the lack of adequacy of the Pniec to the European emissions allocation rules,” but for “(…) the lack of adequacy of the Pniec to international law and Spain’s commitments within the scope of the UN.” In other words, the request to force the Government to increase the mitigation target was based on non-compliance with the Paris Agreement, but not a breach of EU law. However, the requested target of at least 55% is derived from the EU’s Climate Law.
The EU’s climate policy, since its inception, stems from its commitments under the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, and the Paris Agreement. As stated by the SC in its judgment, the EU has been and continues to be a global leader in the fight against climate change. However, the SC’s judgment does not refer to the origin of the burden-sharing system within the EU, which was established with the signing of the Kyoto Protocol, adopting the so-called “European bubble,” following the principle of “common but differentiated responsibilities.” Thus, the reduction percentage adopted by the EU is collective and not for each member state. For instance, during 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 goal of reducing total EU emissions by 8%, its commitment upon signing the Protocol.
The plaintiffs’ claims are also rooted in science, but the SC states that, according to our Constitution, it only has the power to assess whether the Pniec complies with the Law. Therefore, for the examination of the legality of the Pniec, “considerations of dogmatic and scientific nature” are not applicable, the Supreme Court points out. In judgments by courts in other countries, science was considered, as in the Urgenda case in the Netherlands. The UNEP report on climate litigation shows that the highest number of cases occurred in the US, specifically 1,550 out of 2,180 cases registered. A detailed analysis of the nationally determined contributions of the US provides clues as to why there are so many lawsuits. We must consider that legal systems vary from country to country. For example, citizens in Spain cannot file a constitutional complaint against a law that violates fundamental rights, whereas in Germany, young people did so against the Federal Climate Protection Act, and the country’s Constitutional Court compelled the government to establish reduction targets for 2040. However, judgments from courts in other countries are not applicable in Spain based on the principle of state sovereignty, which significantly limits progress in climate negotiations.
To settle the case, the SC analyzes the international regime for climate change mitigation. The judgment states that until the Paris Climate Summit (COP 21), the Parties had not committed to greater measures than those established in the UNFCCC, omitting the Kyoto Protocol adopted in COP3 in 1997, under which emission reduction levels above what was required were achieved (although it did not prevent a substantial global increase in emissions, as it only obliges countries in Annex B to meet their targets – mainly developed countries). At the same time, the SC asserts that little progress has been made since the Paris Summit, without mentioning the Rulebook adopted at the Katowice COP and finalized at the Glasgow COP, which is essential for the implementation of the Paris Agreement. The legal regime for protecting the climate system, as well as international environmental protection law, has evolved for over 50 years and is complex, making it necessary to introduce these matters into judicial training programs, considering the increasing number of climate and environmental litigations.
Considering the plaintiffs’ request, the SC declares that the Paris Agreement does not contain any quantified emissions reduction target, granting the Parties broad discretion to adopt mitigation measures. In contrast, the EU has established quantified and progressive targets, as required by the Agreement, initially committing to a 40% reduction. The SC states that if it were to demand this increase, it would impose on the government the adoption of a “(…) very different economic policy from what our country has in place, forcing the Administration to reformulate such policy, which, from the perspective of its powers, would constitute excessive intrusion.”
When deliberating on the protection of human rights that would be achieved with an increase in the mitigation target, the judgment links it to the consequences that a reduction of at least 55% of emissions would have on the economy of our country at the present time and the hardships that citizens would face. However, the judgment does not simultaneously analyze the impacts and economic losses generated by climate change itself. Nevertheless, the judgment also acknowledges the need to reduce global emissions across the international community, including developing countries, following fulfillment of the financial commitment by developed countries to provide $100 billion to developing nations by 2020. We should remember that this will once again be a prominent topic on the agenda of COP 28 in Dubai, under the new quantified and collective funding objective. After all, the EU’s contribution to global emissions represents 8%, so in addition to ambitious climate action on its part, it is required that other states not only take measures but also urgently implement them.
Taking into account these and other reasons, the SC has declared that Spain’s mitigation target aligns with the EU’s criteria, which cannot be considered arbitrary, thus dismissing the plaintiffs’ appeal.
Recently, based on the non-regression principle, the Government proposed an increase in the mitigation target of up to 32% by 2030 in the Pniec review. However, it is crucial to make progress in implementing the measures outlined in the Pniec to achieve this target
Ana Barreira is a lawyer and founding Director of the International Institute for Law and Environment (IIDMA), an organisation that this year celebrates its 25th anniversary. She is co-president of the energy and environment section of the Madrid Bar Association.