by Nataly Machado (Master's student in EU Law, UMinho)
In a year of so many turbulences and uncertainties, the last month of 2020 contained dates that must be remembered and questioned about how is possible to improve what was once idealized and started. These are events that reveal changes in growing recognition of the global climate crisis as well as the EU strategies towards achieving environmental protection.
1 year ago: on 11 December 2019, the European Commission announced the European Green Deal. It is a response with the objective of tackling climate and environmental-related challenges to transform the EU into the first climate neutral continent by 2050 with a just and inclusive transition, a clean, affordable, and secure energy supply, a modernized EU industry, a clean and circular economy and sustainable and smart mobility, with the protection of biodiversity[i].
5 years ago: on 12 December 2015, the Paris Agreement has signed and, as a legally binding international treaty on climate change, is a landmark in the multilateral climate change, in which all abiding nations commit to undertake efforts to combat climate change, in order to limit global warming preferably to 1.5 degrees Celsius compared to pre-industrial levels[ii].
20 years ago: on 7 December 2000, the Charter of Fundamental Rights of the European Union was proclaimed by EU Institutions. It reaches primary law status nine years later, with the Treaty of Lisbon, and strengthens the fundamental protection of the environment in Article 37, according to which “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”.
72 years ago: on 10 December 1948, the United Nations (UN) approved the Universal Declaration of Human Rights, as a direct result of the acknowledgement of the atrocities committed during the Second World War, and the founding instrument of human rights that form the basis for a democratic society[iii].
In this chronology, as a “poetic permit”, why not remember that 100 years passed since the birth of Clarice Lispector, on 10 December 1920? Who was this Lady? One of the greatest names in Brazilian literature[iv] that in one of her latest works, The Hour of the Star (1977), begins the narrative saying that «All the world began with a yes» [v].
And that is how we started December 2020: with a yes from the European Court of Human Rights that it has green-lighted the case which was filed by a group of Portuguese children and young adults, with GLAN’s (Global Legal Action Network) support, that brought an unprecedented climate change case against 33 Member States of the Council of Europe. In a sign of the urgency of the climate crisis, the case is being treated as a priority, which means the process will be fast-tracked. Those States – the EU 27 plus Norway, Russia, Switzerland, the UK, Turkey and Ukraine – are mandated to respond by 23 February 2021 to the complaints of the plaintiffs, who say governments are moving too slowly to reduce the greenhouse gas emissions that are destabilising the climate[vi]. This case suggests that the disparity in different generations experience of climate change constitutes discrimination in their enjoyment of human rights, since today’s young people will experience rising sea levels, extreme heat, storms and other extreme weather events, for far longer and with greater intensity than previous generations[vii].
Another yes was recorded on December 11, in which EU leaders agreed to increase the EU’s target of reducing execution to 55 percent by 2030 – the 2030 Climate Target Plan[viii] – paving the way to update the contribution to the objectives of the Paris Agreement, among them, to keep the global temperature rise well below 2° C and to endeavor to keep it at 1.5° C. Moreover, on the same day, EU leaders reached a deal to address the concerns expressed on the recovery package – the agreement on the EU’s long-term budget and the ‘Next Generation EU’[ix] recovery instrument –, ensuring that Member States economies undertake the green and digital transitions, becoming more sustainable and resilient.
Small but concrete legal steps are being taken in regard to environmental protection on different levels: worldwide by international agreements; by the EU Institutions through its legal and jurisprudential standards; by EU Member States through their Constitutions and internal laws. However, studies regarding the impact of human activity on nature in the XXI century[x] show that the solution to many environmental problems does not only rely on a greater economic concern and legal strategies but also demand for formal civic learning and the use of new technologies to safeguard the environment. So, scientific and citizen participation must go together in justifying environmental decisions.
Within the scope of UN, Rio Declaration on Environment and Development 1992[xi] already rightly indicated this requirement. Principle 9 states that “States should cooperate to strengthen endogenous capacity-building for sustainable development by improving scientific understanding through exchanges of scientific and technological knowledge, and by enhancing the development, adaptation, diffusion and transfer of technologies, including new and innovative technologies”. At the same time, principle 10 states that “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate an.”
Under EU law, the Treaty on the Functioning of the European Union is clear about the need to consider the scientific and technical data available in the development of environmental policy in its Article 191[xii]. And the Treaty on European Union ensures, in its Article 10, provisions related to democratic principles, according to which “Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen”. Under the logic of the European Green Deal, “A new pact is needed to bring together citizens in all their diversity, with national, regional, local authorities, civil society and industry working closely with the EU’s institutions and consultative bodies”.
The environmental challenges of the last few decades show that the global scope of environmental problems has been known for a long time: pollution, loss of biodiversity, global warming, and destruction of the ozone layer. These situations did not respect international borders. Recently, the Court of Justice of the European Union decided that Italy and Greece, in two different infringement procedures[xiii] brought by the European Commission, manifestly failed to take the necessary measures regarding ambient air quality and conservation natural habitats and wild fauna and flora in special conservation areas, respectively[xiv].
The “yes” has already been taken and the change is happening. However, citizens have to decide if and how they want to participate in the decision-making regarding environmental protection, pressuring to increase the role of science and technology in the political debate, and building a real exercise of an environmental citizenship[xv].
[i]For further development, see https://www.consilium.europa.eu/en/policies/green-deal/
[ii]Information available at https://unfccc.int/sites/default/files/english_paris_agreement.pdf
[iii]For further development, see https://www.un.org/en/universal-declaration-human-rights/
[v]Clarice Lispector, A Hora da Estrela (Rio de Janeiro: Rocco Digital, 2020), loc. 30, Kindle.
[vi]Information available at https://youth4climatejustice.org/ https://www.crowdjustice.com/case/youth4climatejustice/ https://www.theguardian.com/environment/2020/nov/30/european-states-ordered-respond-youth-activists-climate-lawsuit
[vii]Information available at https://time.com/5916362/climate-change-human-rights-portugal/
[viii]For further development, see https://ec.europa.eu/clima/policies/eu-climate-action/2030_ctp_en
[ix]Information available at https://ec.europa.eu/info/strategy/recovery-plan-europe_en#latest
[x]See the Air quality in Europe – 2020 report from the European Environment Agency at https://www.eea.europa.eu/publications/air-quality-in-europe-2020-report And for further development, see https://www.eea.europa.eu/data-and-maps/indicators/exceedance-of-air-quality-limit-2/assessment https://www.unenvironment.org/news-and-stories/press-release/nature-humanity-crossroads-un-warns https://livingplanet.panda.org/en-US/about-the-living-planet-report
[xii]For further development, see https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT
[xiii]For further development, see https://ec.europa.eu/info/law/law-making-process/applying-eu-law/infringement-procedure_en
[xiv]Judgment CJEU Commission v Italy, 10 November 2020, Case C-644/18, available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=233482&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=18404408 Judgment CJEU Commission v Greece, 17 December 2020, Case C‑849/19, available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=235718&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=18403704
[xv] For further development about “environmental citizenship”, see Sophie Perez Fernandes, “Do que o jurídico faz para a proteção do ambiente ao que a proteção do ambiente faz para o jurídico – considerações em clima de metamorfose no quadro jurídico europeu”, in e-Pública, vol.4, nº 3, Maio 2018 (117-143), 141, http://hdl.handle.net/1822/54832. Also see, Tim Hayward, “Ecological Citizenship: Justice, Rights and Virtue of Resourcefulness”, in Environmental Politics, Vol. 15, nº 3, June 2006, (435-446), 441, https://www.tandfonline.com/doi/abs/10.1080/09644010600627741. And Leilane Serratine Grubba et al. “Cidadania ambiental: fundamentos éticos para uma sociedade sustentável”, in Revista Direito Ambiental e Sociedade, v. 7, nº 3, 2017, (7-29), 22, http://www.ucs.br/etc/revistas/index.php/direitoambiental/article/view/4070.
Pictures credits: Waterfall by Free-Photos.