Janine Häsler June 30 2020 No review by Swiss courts of government's approach to climate change Lenz & Staehelin | Litigation - Switzerland Janine Häsler Litigation IntroductionFactsDecisionCommentIntroductionIn a recent decision, the Supreme Court held that an association of elderly women lacks standing to request the Swiss courts to review Switzerland's approach to meeting the Paris Agreement targets to mitigate the effects of climate change (Decision 1C_37/2019 of 5 May 2020). This decision stands in stark contrast with a landmark Dutch case in the emerging field of climate change litigation. However, the Swiss Supreme Court's decision was seemingly motivated by the broad means available to individuals and groups to engage in the political process in Switzerland. For this reason, among others, the decision may not be transposed to other jurisdictions.FactsAn association of elderly women, the Climate Seniors Association (plaintiffs), requested various public authorities, including the Swiss Federal Council and the Federal Office for the Environment, to take more stringent action in order to mitigate the effects of climate change under the Paris Agreement. Among other actions, the plaintiffs wanted the Swiss government to pursue a higher reduction target for carbon emissions until 2020 and 2030, respectively, as well as effective enforcement of the measures already in place.As the requests were dismissed by the approached authorities and the competent court of appeals, the Climate Seniors Association approached the Supreme Court. The Supreme Court primarily had to assess whether the Climate Senior Association and its members have standing to seek a review of the emissions reduction target and the measures already taken by Switzerland to meet that target.Decision The Supreme Court highlighted that, under Swiss law, actiones populares (ie, collective complaints) are not permissible. In order to establish standing, the plaintiffs must demonstrate that their own rights are affected by the omissions in question, which would require a potential violation of their rights – in particular, their human rights. In that regard, the plaintiffs referred to the effects of climate change – notably, the increasing temperature and the more frequent, intense and prolonged heat periods, which cause a higher mortality rate among women above the age of 75. Hence, the elderly women, all of whom were above that age, contended to be particularly concerned and vulnerable and argued that the absence of more stringent actions violates their human rights to life, privacy and family.In response to this argument, the Supreme Court referred to the emissions reduction target of "well below 2°C above pre-industrial levels" pursuant to the Paris Agreement (Article 2(1)(a)) and concluded that this threshold will not be exceeded until approximately 2040. Thus, the Supreme Court held that there is still ample time to prevent a critical temperature increase. Therefore, according to the Supreme Court, the plaintiffs' human rights are not immediately threatened, and the Climate Senior Association and its members could not to establish a legitimate interest in bringing their claim.More generally, the Supreme Court emphasised that neither the plaintiffs nor other individuals are sufficiently affected by the alleged omissions and that the litigation path is thus not accessible for claims aimed at a review of the climate actions taken by Switzerland. Rather, such political motions could be pursued under multiple other avenues offered to individuals and groups by the Swiss political system, such as:a popular initiative or referendum;a petition; andmore broadly, the freedom of press and the freedom of speech.CommentFrom a legal point of view, the outcome of the case is justified due to the following peculiarities of Swiss law (in addition to specific procedural aspects). First, the fact that climate change poses a threat to the entire population and not just specific individuals cannot be reconciled with the required special concerns of the plaintiffs. Second, the Supreme Court's decision is further underpinned by the availability of a whole range of other means by which the plaintiffs could engage in the political process.However, in light of the widely perceived urgency of climate change, the Supreme Court's view that there is still ample time to implement more stringent actions is puzzling. Although the Supreme Court rightly highlights that the crucial threshold will not be exceeded for approximately 20 years, it ignores the time lag until the impact of any measures can be seen. Further, the Supreme Court has disregarded the slow and consent-based approach in Swiss politics, which may undermine the effectiveness of alternative political avenues. In other words, if the plaintiffs stick to the political avenues, 20 years is arguably not ample time to agree, enforce and effectuate a higher reduction target and more stringent actions.The decision casts doubt on the future of climate change litigation which questions the approach taken by the Swiss government – particularly compared with the recent landmark case of Urgenda in the Netherlands, in which the Dutch Supreme Court ordered the government to take a more stringent approach to reduce emissions. The Swiss decision must be seen in connection with Swiss law peculiarities and the general political landscape and is – unless a jurisdiction offers similar means to engage in the political process – not readily transposable outside Switzerland.For more information please contact Janine Häsler at Lenz & Staehelin by telephone (+41 58 450 80 00) or email ([email protected]). The Lenz & Staehelin website can be accessed at www.lenzstaehelin.com.