文章基本信息

标题：Climate change litigation and central banks
本地全文：下载
作者：Joana Setzer ; Catherine Higham ; Andrew Jackson 等
期刊名称：Euro Area Balance of Payments and International Investment Position Statistics
印刷版ISSN：1830-3420
电子版ISSN：1830-3439
出版年度：2021
卷号：2021
语种：English
出版社：European Central Bank
摘要：Given the urgent need to dramatically reduce greenhouse gas emissions, and concern regarding insufficient climate action and ambition across the globe, NGOs and individuals are increasingly turning to the courts to force States, public authorities, and private entities to increase their climate action and ambition and hold them accountable through climate-related litigation. The three contributions in this legal working paper discuss various aspects of such climate change litigation around the world. The papers examine the evolution of climate-related cases, the scope of such cases and the varying grounds on which they have been based. They also focus in some detail on certain key judgments addressing novel issues, as well as a recent climate-related case brought against a national central bank. The papers were originally presented at the Legal Colloquium on “Climate change litigation and central banks – Action for the environment”, organised by the European Central Bank on 27 May 2021. The first paper gives an overview of climate change litigation, notably cases filed or concluded between May 2020 and May 2021. It examines the scope and trends of such litigation, their geographical and chronological distribution, case characteristics and outcomes. The paper identifies three waves of climate litigation. The first wave, from the late 1980s to the early 1990s, was dominated by cases filed in the United States and a few in Australia. The second wave, which started in 2007, saw litigation expand into Europe. The signing of the Paris Agreement in 2015 launched the third wave of cases, with climate change litigation becoming a truly global phenomenon. The authors broadly categorise cases as either strategic, namely where the claimants’ motives for bringing the case go beyond individual concerns and aim at a broader societal shift, or non-strategic. However, the paper recognises that not all cases fall into these two categories. It also examines a number of systemic mitigation cases as well as other cases challenging government action on climate change. The paper notes that a climate case has recently been brought against a central bank and concludes that litigation against financial market regulators and supervisors may soon arise. The second paper provides a detailed analysis of Climate Case Ireland before Ireland’s High Court and Supreme Court. It outlines the origins of the case, for which the Urgenda case against the Dutch Government acted as a catalyst. When the Irish Government issued its first National Mitigation Plan under the Climate Act 2015 in 2017, this was perceived as the perfect target for launching an action inspired by the Urgenda case. The author outlines the plaintiff’s grounds for instigating Climate Case Ireland, the central ground being the claim that the Government’s plan was not in compliance with the Climate Act 2015 and breached a number of rights under the Irish Constitution, including the unenumerated right to an environment, and the European Convention on Human Rights (ECHR). The case was strengthened in November 2017 when the Irish High Court recognised, in the Dublin Airport case, that an unenumerated right to an environment can be identified in the Irish Constitution. In October 2018, The Hague Court of Appeal issued its judgment in the Urgenda case, holding that the Dutch Government had infringed rights under the ECHR, making the prospects for Climate Case Ireland seem even rosier. The High Court’s ruling in September 2019 was disappointing for the plaintiff, but it decided to leapfrog straight to the Irish Supreme Court, where the case was heard in June 2020. The Supreme Court issued a unanimous judgment, finding for the plaintiff and quashing the Government’s National Mitigation Plan. However, the Supreme Court did not recognise the plaintiff’s standing to litigate personal rights and did not identify an unenumerated right to a healthy environment in the Irish Constitution. The issues raised by the case and its possible ramifications are discussed in detail in the paper. The third paper focuses on climate change litigation risk in relation to national central banks (NCBs) and financial institutions. The author provides a detailed analysis of the first climate change case against an NCB, namely the pending case brought by ClientEarth against the Nationale Bank van Belgiё/Banque Nationale de Belgique (NBB/BNB). ClientEarth challenged the validity of the ECB’s Corporate Sector Purchase Programme (CSPP) by alleging that the NBB/BNB’s purchases of corporate bonds under the CSPP, as well as the ECB decision on the implementation of the CSPP, failed to take into account environmental protection requirements. The paper highlights the Eurosystem’s obligation under Article 11 of the Treaty on the Functioning of the European Union to take environmental protection requirements into account when defining and implementing monetary policy. The third paper also identifies the types of claims that financial institutions and NCBs might face in climate-related cases. The author reflects on the risks that these cases could pose to financial institutions and the types of direct and indirect costs they could lead to. The paper puts forward methods for financial institutions and supervisory bodies to monitor and manage the risk of climate change litigation, such as integrating this type of risk into their supervisory toolkit, incorporating climate change litigation risk into their risk management frameworks or including certain questions in supervisory stress tests on climate-related risks.
关键词：climate-related litigation;climate change;climate risk;financial risk;compilation of cases;Article 11 TFEU;monetary policy;corporate sector purchase;programme;litigation against financial institutions;Ireland;European Convention on;Human Rights;transnational legal networks;right to an environment;legal standing