By Juan Manuel Ramírez Cirera (Universidad Carlos III de Madrid)

The phenomenon of climate litigation has been booming for some years now. Despite the major obstacles that exist in this area (i.e. the potential lack of legal standing and the difficulty of finding an appropriate legal basis to bring the claim), some groups of individuals and environmental associations have achieved resounding legal victories around the world in the face of governments’ lack of sufficient action on climate change (perhaps the most relevant being the Urgenda case). Likely encouraged by these successes, according to the Global Climate Litigation Report 2023, prepared by the United Nations Environment Programme in collaboration with the Sabin Center for Climate Change Law at Columbia University, by December 2022, at least 2,180 climate change claims had been filed in 65 courts.

In Spain, we have had to wait a few years to obtain the first pronouncement of the Supreme Court on the matter, which came on 18 July. Specifically, on that date, its Third Chamber dismissed the claim filed by the environmental associations GreenPeace España, Ecologistas en Acción-CODA and Oxfam Intermón (“Claimants” or “Environmental Associations“) against the Spanish government (“Government“), confirming the alignment of the PNIEC 2021-2030 with Spain’s commitments under the Paris Agreement.

The legal standing of the Claimants

As regards legal standing, the Supreme Court held that the Claimants had legal standing ex art. 22 of Law 27/2006, given that the legal nature of the PNIEC is that of a general provision. The justification for this lies in the fact that (i) it is approved by Royal Decree, in accordance with the provisions of art. 4.1 of Law 7/2021 (which establishes its content), and (ii) its greenhouse gas emission reduction targets are binding, in line with art. 4.a).1).i) of Regulation (EU) 2018/1999.

The legal basis for the claim

The Environmental Associations based their claim on art. 29.1 of Law 29/1998 (“LJCA“), which allows to require the Public Administration to perform a specific benefit in favour of certain individuals when they are entitled to it by virtue -as far as we are concerned here- of a general provision that does not require implementing acts.

The Claimants initially attributed the Government’s climate inactivity to the failure to approve the Integrated National Energy and Climate Plan 2021-2030 -as required by art. 3.1 of Regulation (EU) 2018/1999 and art. 4. 1 of Law 7/2021- (“PNIEC” or “Plan“), which, in their view, should include -as a minimum- a target of a 55% reduction in greenhouse gas emissions by the end of the period compared to 1990, and a long-term strategy aimed at achieving carbon neutrality by 2040 at the latest. The inclusion of both objectives, according to the Environmental Associations, was essential to meet Spain’s commitments under the Paris Agreement and the scientific recommendations of the Intergovernmental Panel on Climate Change (IPCC).

During the processing of the appeal, the Government approved the PNIEC 2021-2030 and the long-term strategy, but the claim remained, since the approved plan, coherently with art. 3.1.a) of Law 7/2021, included a greenhouse gas emissions mitigation target for 2030 of 23% and not of 55%, as required by the Claimants.

Adequacy of the legal basis

In its ruling, the Supreme Court confirmed that, with regard to the mere approval of the PNIEC 2021-2030, the legal basis of art. 29.1 LJCA was appropriate, holding that such an approval constituted a duty of the Public Administration to provide a specific benefit. It is a different matter if, as the Environmental Associations claimed, the Government was obliged to approve the PNIEC and the long-term strategy including a 55% emissions reduction target for 2030 and complete decarbonisation by 2040.

The Tribunal holds that judicial review of regulatory omissions is only possible when regulatory inactivity constitutes a breach of an obligation expressly provided for by law. Since regulatory power is vested in and exercised at the discretion of the Government (art. 97 of the Spanish Constitution), it cannot be compelled by virtue of a judicial mandate to exercise it in a specific way. What is at stake, as can be understood, is the principle of separation of powers, one of the foundations of the rule of law.

Extension of the binding nature of the Paris Agreement

In this sense, the Supreme Court reasons that, unlike the legal regime of the United Nations Framework Convention on Climate Change and the Kyoto Protocol, the Paris Agreement links compliance with its objectives (i.e., according to its art. 2, to keep the increase in the global average temperature well below 2 °C with respect to pre-industrial levels, and to continue efforts to limit this temperature increase to 1.5 °C) to the sum of the efforts that each State assumes individually and at its discretion, according to its own interests. Indeed, it does not impose a specific percentage of national greenhouse gas emission reductions. It was precisely designed in this way in order to achieve a number of accessions to the treaty that would give it a quasi-universal territorial validity. Nor, in the Court’s view, are the IPCC’s recommendations binding.

The Supreme Court recalled, obiter dicta, that Article 4(1) and Annex I of Regulation (EU) 2018/842 (recently amended by Regulation (EU) 2023/857, which imposes greater efforts to reduce emissions and which will lead to a revision of the PNIEC —already underway—) do contain certain binding obligations to reduce greenhouse gas emissions by 2030 compared to 2005 levels, in order to meet the European Union’s commitments under the Paris Agreement. However, the European Commission has favourably assessed the PNIEC 2021-2030 and, in any event, non-compliance with the aforementioned regulation was not alleged by the Claimants.

The Tribunal’s decision: dismissal of the claim

Given this reasoning, there is no regulatory inactivity on the part of the Government within the meaning of Article 29.1 LJCA, which is why the Supreme Court dismissed the claim.

In short, the PNIEC 2021-2030 and the long-term strategy comply with the commitments made by Spain under the Paris Agreement: that is, to contribute, to the extent required by EU law, to the fulfilment of the contributions made collectively by the European Union aimed at keeping the increase in the global average temperature well below 2 °C compared with pre-industrial levels, and to continue efforts to limit that temperature increase to 1.5 °C.

The first major Spanish climate litigation case is settled with a victory for the Government.

The battle, however, is just getting started.