These two cases have each been considered in blog posts by Claire Nevin and Emma Rowland respectively.  This article now considers what these two cases tell us about the future in relation to the following three issues:

1. human rights claims about the adequacy of government action on climate change;

2. victim status for associations in environmental human rights claims;

3. the scope of environmental claims under the European Convention on Human Rights (ECHR).

1. human rights claims about the adequacy of government action on climate change

The VKS decision involved a significant extension of the scope and extent of the positive obligations under Articles 2 and 8, in the context of climate change. The scale of this extension can be seen from the partly dissenting opinion of Judge Eicke, who said that the substantive violation of Article 8 found by the majority in VKS had no basis in the text of the Convention nor in any case law [62]. 

VKS was described by Chamberlain J in R (FoE, Jordan & Paulley) v SSEFRA [2024] EWHC 2707 (Admin) at [97] as “a significant development of the case law in relation to climate change … as regards the scope and extent of the positive obligations of the State and the margin of appreciation to be accorded when assessing whether those obligations have been discharged”.

The key feature of VKS was the ECtHR’s conclusions on the content of States’ positive obligations in respect of climate change.  The ECtHR said that, to comply with the positive obligation under Article 8 in relation to climate change, there is a duty to adopt and effectively apply in practice regulations and measures capable of mitigating the future effects of climate change [545], [555]. 

The ECtHR went on to say that, to test whether the State has remained within its margin of appreciation, it would examine whether the State [550]:

- has set, and kept updated, greenhouse gas (GHG) emission reduction targets and pathways that are deemed capable, in principle, of meeting overall national GHG reduction goals within the relevant time frames; and

- has complied with, or is in the process of complying with, those GHG reduction targets.

The ECtHR’s articulation of what the Article 8 positive obligation means in terms of duties opens States up to challenges to the adequacy of actions on climate mitigation, as being outside their margin of appreciation in the context of climate change. States could face claims that they are not formulating adequate measures to meet their GHG emissions reduction targets or GHG budgets in time, or that they are not acting in an appropriate and effective manner in implementing measures to meet their GHG emissions reduction targets or GHG budgets in time (see [550], [555], [545], [549]). 

Another key feature of the judgment was the conclusion that there is a reduced margin of appreciation in the setting of aims and objectives, and timelines, for combating climate change and its adverse effects, such that “immediate action needs to be taken and adequate… reduction goals must be set” (see [543], [549]). This could open up States to challenges to their GHG emissions reduction targets, or GHG budgets, they set, especially if they are out of line with the advice of bodies like the Climate Change Committee in the UK.

2. victim status for associations in environmental human rights claims

In the VKS case, the ECtHR decided that a special approach should be taken to victim status and standing for climate change cases. The ECtHR accepted that an NGO had standing in an environmental human rights claim for the first time. 

As Judge Eicke pointed out in his partly dissenting opinion, the ECtHR in VKS granted associations the broadest standing, which did not require the members of the association to meet the victim status requirement, creating a basis for actio popularis type complaints [45].  In Jordan & Paulley, Chamberlain J said that the VKS decision “appears to create a new lex specialis governing standing for associations in the field of climate change” [152].

The ECtHR’s rationale for its decision on victim status in VKS included that climate change is a global and complex phenomenon [489], the consequences of climate change “are not limited to certain identifiable individuals or groups but affect the population more widely” [479], and climate change is “a common concern of humankind” [489], [499].  It also referred to there having been “an evolution in contemporary society as regards recognition of the importance of associations to litigate issues of climate change on behalf of affected persons” and that associations regularly appear in domestic climate change litigation [497].  The ECtHR’s view was that “the specific considerations relating to climate change weigh in favour of recognising the possibility for associations… to have standing” [498]. 

On the key question of what this means for the future, we can get some idea from the subsequent ECtHR decision in Cannavacciuolo.  The majority in the ECtHR in Cannavacciuolo took a narrow view of the decision on standing for associations in VKS, saying that it related to the special and specific features of climate change [220], and that it could not discern any special considerations which would lead it to grant standing to the applicant associations in that case [221]. 

The dissenting opinions of two judges took issue with this.  Judge Krenc said that, on this issue, he “must confess to a certain bewilderment” [6].  He thought that it was artificial to draw such a clear-cut distinction between climate change and other environmental issues and questioned whether climate and environment are so distinct as to justify two fundamentally different approaches to the standing of associations.  Judge Serghides also disagreed with the majority and referred to large-scale and widespread diffuse pollution, including forever chemicals.

It is apparent from this that there will be pressure to apply the approach on associations having standing beyond climate change cases, including in circumstances where it might be hard to draw a clear dividing line between climate change and at least some other forms of environmental harm.  It could be argued that the ECtHR’s rationale in VKS would apply to other types of widespread, diffuse global pollution of air or water.  Other examples might be pollution of the oceans by plastics or industrial chemicals.

3. the scope of environmental claims under the ECHR

This point arises from the ECtHR decision in Cannavacciuolo, which was the first environmental case where ECtHR found a breach of Article 2. The case concerned the illegal disposal of waste by criminal gangs in a region of Italy, involving dumping, burying and burning waste.  Three aspects of the judgment are notable.

First, the scope of the nature of the pollution was wider than that which has led to a breach of human rights before. Previously, cases usually involved a single, identified source of pollution in a limited geographical area [384]. In Cannavacciuolo, there was a widespread form of pollution, from a multiplicity of different sources, with very different pollutants and impacts, over a wide geographical area.

Secondly, the approach to causation was more relaxed than might previously have been expected. The ECtHR said it was not necessary to prove a link between exposure to an identifiable source of pollution and the onset of an illness [390]. It adopted a precautionary approach, where showing a general risk from the pollution was enough [391].

Thirdly, it was held that, where Article 2 is applicable, the State’s positive obligation includes a duty to undertake a comprehensive assessment of the pollution, identifying the affected areas, and the nature and extent of the pollution, and then to provide information to individuals living in the affected areas [395].

It is likely that this approach will be argued to apply to other widespread, diffuse pollution impacts, such as PFAS forever chemicals, or agricultural pollutants, in water. 

Overall, this is an area where the law is rapidly developing.  We can expect to see the developments in ECtHR case law begin to have implications domestically in the near future, with a widening scope for using human rights arguments in environmental claims in England and Wales.

Richard Honey KC is a barrister practising at Francis Taylor Building in public and environmental law.