Our comments
Climate-induced displacement: A human rights-based approach to filling the existing legal gap
By Irene Sacchetti*
11. 2. 2022
As global average temperatures continue to increase due to States’ non-compliance with international climate obligations, UN agencies estimate that more than 1 billion people could be forcibly displaced by 2050 due to climate change impacts, which are making their land unhabitable. However, there is no specific provision nor a comprehensive legal framework under existing international law designed to respond to cross-border migration due to climate change effects. The purpose of this article is to explore whether the protection of those uprooted by climate change impacts - inappropriately called “climate refugees”- can be possible following a human rights-based approach, instead of pressure on the current international definition of “refugee”. Finally, I will compare how the judiciary and non-judicial bodies’ recent decisions at international and domestic level approach this unprecedented legal phenomenon, starting from a human rights perspective.
Climate Change as a driver of migration
Far from being a future concern, anthropogenic climate change is already triggering massive and negative environmental consequences, projected to impact people’s living conditions and natural ecosystems exponentially in future years. Read more
The Commission’s investigation on the arbitral award against Spain: The incompatibility between EU law and the Energy Charter Treaty emerges again
By Aleksi Heikkinen*
11. 2. 2022
Spain has had its fair share of investment disputes for alleged breaches under the Energy Charter Treaty (ECT) due to the modifications of its renewable energy scheme. One of them is Antin v. Spain- case, which was ruled in favour of Antin, and Spain was obliged by the Arbitral Tribunal to pay 112 million euros for compensation for the breaches of the investment protection clauses under the Energy Charter Treaty. However, in July 2021, the European Commission launched an investigation suspecting that paying the compensation would constitute an illegal state aid under EU’s competition rules. The Commission cited also the famous Achmea- decision of the Court of Justice of the European Union, and stated once again, that solving the investment disputes by the Arbitral Tribunals under the ECT would endanger the autonomy of the EU law and mutual trust between the Member States. This post is mean to give some background to renewable energy disputes in Spain and overview to the complex legal questions that stem from the conflict of two legal regimes in the context of applying Energy Charter Treaty in intra-EU disputes. Read more
The Czech government considers EU taxonomy conditions for nuclear and gas too strict
By Monika Feigerlová
2. 1. 2022
The EU Taxonomy has just started to resonate in the Czech public debate although it was adopted over a year ago. The reason is the Commission’s recent proposal to recognise nuclear energy and natural gas as Taxonomy-aligned (green) activities eligible for sustainable financing, provided certain criteria are met. Nuclear energy plays an important role in the Czech energy mix. Is the inclusion of nuclear energy and natural gas in the Taxonomy a success or a failure from the Czech perspective?
Based on the Commission’s draft proposal amending Delegated Regulation (EU) 2021/2139 as regards economic activities in certain energy sectors, which was leaked to the media, nuclear energy power and natural gas can be considered ‘transitional environmentally sustainable‘ investments, provided they meet specific requirements. Read more
Do we have a human right to a stable and safe climate?
By Irene Sacchetti*
6. 1. 2022
The severe and increasingly pressing consequences of climate change are not future threats, but are real and apparent nowadays. Direct and indirect implications for the enjoyment of fundamental human rights are already underway. As climate stability, together with a healthy environment, are a precondition for the full enjoyment of fundamental rights, it is relevant to question whether there is a right to a stable climate under international law and domestic constitutional provisions around the world. Further, the new wave of climate litigation claiming the recognition of such a right corroborates the imperative need to acknowledge the importance of climate stability for present and future generations.
Natural disasters and slow-onset processes are already taking place: rising average temperatures, more frequent drought and wild fires leading to desertification of the land in some regions of the world, shifts in rainfall patterns, melting glaciers, the rise in global sea levels and the spread of tropical and vector-borne diseases are just some of the evidence. Read more
Reform of the Climate Change Act of Finland
By Aleksi Heikkinen*
22. 12. 2021
The Climate Change Act, which entered into force in June 2015, is a national climate law of Finland, setting national climate targets. The Act itself is a so called “framework act”, meaning that it will impose obligations only on state authorities, and not private individuals or companies. The main steering instrument under the Act is the planning system for climate policy setting a number of plans, which are meant to help reducing greenhouse gas emissions, and also adapting to climate change in Finland. The law does not directly set measures or actions to be taken to reduce emissions or adapt to climate change, but they are set and defined in the plans that are required by the Act, and also in other legislation. The law also sets obligations for government authorities to monitor emissions and report them in order to follow how reaching the climate objectives is progressing, so that it is easier to evaluate whether extra measures are required to reach the set targets. The Climate Change Act prescribes appointing a panel of experts (Finland’s Climate Panel) from different backgrounds comprising an independent scientific expert body with an objective to provide data to policy- makers to support their science-based decision-making. Read more
FIT for 55 package: Implications for the EU’s aviation sector
By Aleksi Heikkinen*
25 November 2021
The aviation sector is a major emitter contributing approximately 2-3% of total global CO2 emissions, and if the sector was a country, it would count among the top ten emitters in the world. In 2018, at the EU level, airlines were responsible for 3,7% of EU’s total emissions and 15,7% of transport emissions. The EU was also responsible for 15 % of global aviation emissions that year. Prior to the Covid-19 pandemic it was estimated that the demand for global aviation could triple between 2020 and 2050. The sector is one of the fastest growing sources of greenhouse gas emissions, and despite the efforts to mitigate the climate impacts of the sector and constant improvements in fuel efficiency over the years, the sustained growth of the sector has outpaced the benefits of these developments. Therefore, stricter policy measures are needed to decarbonise the sector and mitigate its climate impacts. While the EU is raising its ambitions with the climate targets, the aviation sector is increasingly coming under scrutiny. The Commissions legislative proposals in the “Fit for 55” package will affect the aviation sector as well, and this post is aims to give an overview of the most relevant instruments of the package concerning this sector in particular, and how the EU is planning to shift it into more a sustainable direction. Read more
The inclusion of women within the international climate change regime
By Irene Sacchetti*
3 November 2021
Among the complex and pressing challenges that climate change is posing at multiple levels, rising gender disparities as a consequence of climate change require specific attention due to the cross-cutting nature of the issue. The progressive recognition given to women’s participation in climate policy-making under the international climate change legal regime over the past twenty years reflects the growing awareness that gender equality is a key component in achieving climate change goals. In this text, I would like to stress the most significant steps achieved in encapsulating gender balance and women’s rights within the international climate change regime, by underlining that tackling gender inequality represents a unique opportunity to combat adverse effects of climate change.
1. Women in the context of climate change: an overview
Women play a prominent and dual role within the climate change debate, where gender inequality and climate change impacts are intertwined. Adverse effects of climate change are experienced by women and men differently due to the persistence of gender inequalities around the world. In fact, among other climate-related negative implications, climate change is not gender neutral, but exacerbates and deepens already long-lasting gender inequalities as well as gender-based violence. Read more
The emergence of climate justice
By Pamela Alvarez*
25 October 2021
Climate change has now become a global concern and, as national climate legislation develops worldwide, there is a growing receptiveness to overcome obstacles in terms of access to justice. Today we are witness to a more collaborative approach to combating the effects of climate change, involving coalitions between various actors that include NGOs, citizens and local authorities. Suits based on liability are increasing before national courts, thanks to associations that demand States to take responsibility for the inadequate implementation of climate policies.
Local courts are proving increasingly effective to advance climate litigation, as national judges are more inclined to assume their responsibility when confronted with inadequate laws or public policies to combat climate change. By taking international agreements into consideration, national courts reinforce the principles of climate law and strengthen the ongoing discourse between the political and the judicial spheres and, most importantly, between law and science. Moreover, the urgency of the ongoing climate crisis and the abundance of litigation at the international level demonstrate that the vast majority of national litigation can be addressed with stricter climate-related legislation. In this context, lawsuits have emerged that support the perception that the legal regimes set in place are insufficient and do not go far enough in tackling climate change. By interpreting environmental law, the courts are establishing climate remedies that contribute to the further development of climate justice, by placing such issues at the core of the legal debate. Read more
Climate Change and the Expansion of Airports in Court: Are there any Arguments at all? A few Remarks on Unsuccessful Cases against Airport Expansions in Europe
By Eva Balounová
31 May 2021
In recent years, national courts in Europe have dismissed climate change arguments against the expansion of airports in London, Vienna, and Prague. What were the reasons for the courts’ decisions and is there any room for future successful lawsuits? In this blog post, I answer this question by examining the reasoning of the courts and proposing other views based on current approaches in climate change law and existing case law.
The development of a third runway at Heathrow Airport in South East England was supported in the Airport National Policy Statement (ANPS) designated by the Secretary of State for Transport in 2018 under the Planning Act. The ANPS was challenged based on its alleged failure to take into account the Paris Agreement ratified by the United Kingdom (UK) in 2016. The Court of Appeal held that the ANPS was unlawful; however, this decision was overturned in December 2020 by the UK Supreme Court (R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52).
Termination of the Energy Charter Treaty for a ‘Cheap’ Clean Energy Transition?
By Monika Feigerlová
24 May 2021
In recent months the Energy Charter Treaty (‘ECT’) has been subject to a number of debates. ECT that originated at the beginning of 1990s is a multilateral agreement for cross-border cooperation in the energy industry, including trade, transit, investments, and energy efficiency. Among its approx. fifty contracting parties are all Member States of the EU as well as the EU itself. Negotiations on ECT’s modernization are currently undergoing at the initiative of the EU. However, at the backdrop of the fight against climate change the pace of the negotiations appears too slow and inadequate despite the fact that half of the contracting states of the ECT are also parties to the Paris Agreement.
The EU underlines that, in line with the Paris Agreement and EU’s long term decarbonisation and energy transition policies, it is bound to discourage all further fossil fuel investments, unless they are consistent with a clearly defined pathway towards climate neutrality in accordance with the long-term objectives of the Paris Agreement and the best available science.
Czech Republic’s First Climate Litigation
By Tereza Snopková and Hana Müllerová
15 May 2021
In April 2021, the Czech Republic saw its first ever climate change litigation filed in court. It thus joined many other countries whose governments are also facing legal action due to an insufficient climate response. The defendant governments are accused of unambitious attempts to reduce greenhouse gas emissions and insufficient implementation of preventative climate protection policies and measures. The following text aims to examine the legal framework of the Czech climate litigation, the arguments it is based on and its significance.
Who are the plaintiffs?
The plaintiffs include multiple entities from different sectors. The primary litigant is The Czech Climate Litigation (Klimatická žaloba ČR) Association, which initiated and took charge of the litigation preparations. The Association was created in 2019 in response to the Czech state’s inaction regarding the preparation and implementation of adequate climate change mitigation measures and commitments. The second plaintiff is a municipality (a small village). Other plaintiffs include individual persons and representative groups of citizens affected by climate change in multiple ways: farmers, foresters and city residents. The variety of plaintiffs is important for three reasons. Primarily, it highlights the scope and diversity of the problems relating to climate change. Secondly, it emphasises not only the adverse effects and their impact on the rights of multiple entities, but also the exacerbation of the issue due to the state’s inertia on the matter. Finally, the variety of plaintiffs is legally significant in determining the legal standing of the litigation because it increases the likelihood of the litigation being heard on merit alone (i.e. the prospect of the court accepting the plaintiffs’ legal standing and expressing an opinion on the content of the litigation).
On Ecocide
By Hana Müllerová
26 March 2021
This past January, a request for a preliminary examination of the Brazilian President Jair Bolsonaro was submitted to the International Criminal Court (ICC) in The Hague. He is accused of crimes against humanity over his destructive environmental policies, which account for a surge in the deforestation of the Amazon rainforest.
The Brazilian President is reportedly a notorious climate change sceptic. Since he took office in 2019, the deforestation of the rainforest has soared as high as nearly 50%. Scientists have warned that such destructive policies could push the Amazon rainforest to an irreversible tipping point, turning it into a savannah. As the tropical rainforest significantly helps to balance the climate of the planet, its destruction is adversely impacting not only Brazil, but also the rest of the globe. The submission was referred by Indigenous leaders, whose territory is diminished and destructed by the deforestation, and who argue that the environmental damage amounts to crimes against humanity in its nature and intensity. Such argumentation aligns with the current trend of calls for the crime of ‘ecocide’ to be recognised as an international crime at the ICC.
The Czech Constitutional Court has confirmed the limited participation of environmental organisations in administrative proceedings
By Alena Chaloupková
16 February 2021
At the end of January 2021, the Czech Constitutional Court issued an important decision relating to the participation of environmental NGOs in proceedings concerning the environment. In its judgment No. Pl. ÚS 22/17 of 26 January 2021, the Constitutional Court confirmed the constitutionality of the amendment of Section 70 of the Act on the Conservation of Nature and Landscape by a narrow majority of eight judges confirming to seven opposing. The amendment limited public participation in the proceedings carried out under other acts – in particular under the Building Act – as of 1 January 2018.
To fully understand the significance of this judgment, we need to briefly summarise the public participation in administrative proceedings relating to the protection of the environment, thus far. Environmental organisations (i.e. groups that seek to protect nature, the environment or human health) can now participate in the administrative proceedings and defence of environmental interests in proceedings pursuant to four different acts.
The end of coal in 2038: What the decision of the Czech Coal Commission entails
By Zuzana Vrbová
21 December 2020
On Friday, December 4, the final decision of the Coal Commission was made. The role of the Commission is to advise the Czech government in the process of coal phase-out, both in the form of coal mining and its use for energy purposes. According to its recommendation, Czechia should abandon coal in 2038. In the final stage of its decision-making, the Commission was deciding between the years 2033, 2038, and 2043. Unsurprisingly, 2043 was promoted by industry interest groups, while ecologists, as well as some scientists, recommended the earliest date. It is mainly environmental organizations that are now criticizing the decision, especially concerning the distribution of power in the debates within the Commission. Two representatives decided not to continue being involved in the work of the Commission as a form of protest against the decision-making processes within the body in which the Minister of Industry and Trade had a leading role.
Courts to decide the future of the Czech climate change policy: Preparation of the first Czech climate litigation
By Zuzana Vrbová
17 September 2020
Almost a year and a half ago, a group of concerned citizens decided to establish an association called Climate Action (in Czech: 'Klimatická žaloba'). Its main objective is to prepare and file a petition (administrative action) with the court, which should then decide whether the Czech Government is doing enough to fulfill the ultimate objectives of the Paris Agreement within the United Nations Framework Convention on Climate Change. Following lawsuits in the Netherlands and, more recently, Ireland, the Czech Republic will then be another country with its own a climate change litigation case. Climate litigation has grown in importance, especially over the past decade.
The Association was registered in spring 2019 and currently has around 150 associates. In order to file the petition, Klimatická žaloba approached an established environmental law firm, Frank Bold, which conducted an analysis regarding the lawsuit’s prospects. A year later, in spring 2020, the work on the draft petition began.
Preparation of the new Czech Building Act causing outrage in green circles
By Hana Müllerová
30 August 2020
On 24 August, the Czech Government pushed through the draft new Czech Building Act that now moves to the Parliament. The new legislation is to replace the law in force of 2006. The main aim of the recodification is to simplify and speed up the planning and building permitting processes. Due to an international comparison report in 2019, the periods in Czechia usually needed before construction work can begin, covering spatial planning processes and permit procedures, are extraordinarily long, placing the country in the 156th position out of 190. In ordinary cases, handling the building permit can take up to five years, while for big transport infrastructure constructions it can last over ten years. The causes lie in a combination of factors, including extensive, complicated and often-changing legislation (there have been more than 20 amendments to the Building Act since its adoption in 2006), inadequate resources in public administration (personnel, financial, expertise) and high demand for building new premises, both dwelling and commercial.
The Czech government to compensate big industries for higher electricity prices caused by the climate measures – a vicious circle of the EU emissions trading scheme
By Zuzana Vrbová
15 July 2020
The Czech Republic has to protect its industry, no matter what it costs. For a long time, this has been the Czech politicians’ rhetoric with regard to ever-tightening environmental regulation. During the Covid-19 crisis, concerns about the future of domestic industry grew even more. It is probably no coincidence that, during that time, the Czech Ministry of the Environment produced two legislative proposals providing financial support to some Czech industrial sectors. However, state aid will only be provided to the biggest enterprises.
Not only electricity and heat producers have lately been concerned about the rising price of the EU Emissions Trading Scheme (EU ETS) allowance. The system was introduced by the European EU ETS Directive 2003/87/EC (‘EU ETS Directive’). It is one of the main EU climate policy instruments; its purpose is to reduce greenhouse gas emissions through a market mechanism.
A new wave of solar disputes on the Czech horizon?
By Monika Feigerlová
18 June 2020
On 27 April 2020 the Czech government approved a draft bill amending the Act on Promoted Energy Sources (Act no. 165/2012 Coll). If approved by Parliament, the proposed amendments that are planned to take effect from 1 January 2021 will bring significant changes to the support provided by the State to producers of electricity from renewable energy sources (RES). The proposal would primarily affect support for photovoltaic installations, which, according to the statement of the Czech Minister of Industry and Trade, will bring savings of up to ten billion Czech crowns.
Czech climate policies: are they enough?
By Zuzana Vrbová
2 March 2020
The Czech Republic is currently experiencing the consequences of climate change on an unprecedented scale – an increasing number of extreme weather events, such as droughts, heat waves and floods, to which climate change contributes, has over time become a regular annual occurrence. The Czech Republic is located in Central Europe with a population of 10.5 million. The average annual temperature has risen by 0.8 °C in the last 50 years and it is expected that it will grow further by approximately 0.24 °C every 10 years. The frequency of the summer and tropical days increased over the previous decade as well. Regarding water sources, the country is fully dependent on precipitation, since there are no rivers entering the country from neighbouring states. Changes in rainfall patterns cause ongoing long-term droughts and impair water retention in the soil. Partly because of these facts, Czech society is becoming increasingly interested in climate change issues. Greater media coverage and student protests also play an important role in building public opinion. According to the April 2019 Eurobarometer 71% of Czech respondents consider climate change to be a very serious problem (compared to the EU average of 79%) – which constitutes a growth of 14% between 2017 and 2019 (while among other EU states this growth it grew by only 5%).
The Centre for Climate Law and Sustainability Studies Launched
By Hana Müllerová
27 February 2020
There has been a long tradition of environmental law studies in Czech legal scholarship. The branch was established as soon as it was made possible after the 1989 breakdown of the communist regime (which had side-lined environmental protection as incompatible with centrally planned economic development). In the 1990s, several key environmental laws were prepared and approved, some of them even in force to this day. I remember the first Czech environmental law textbook of 1995 that I used during my Master’s studies: it was a thin paperback containing the texts of the fundamental environmental laws, with an introductory chapter explaining the main terms, principles and rules of the new field. Since then, the branch has consolidated and increased in both quantity and structure, partly due to implementing EU environmental legislation. However, in the last few years, climate change has posed qualitatively new challenges that may only be partially covered by environmental legislation, whether at the national, EU or international level. Environmental laws do not appear to offer the complete range of suitable instruments to tackle the complex issues that climate change presents to society.
It seems that the 1990s’ situation regarding environmental law is now present in climate law. At the theoretical level, climate law has not yet been considered a separate law branch in the Czech legal scholarship.
| Opinions, findings, and conclusions expressed in this section are those of the authors and do not necessarily reflect the views of the Institute of State and Law CAS. |