Opening Speech at the seminar “Are Climate Impacts Environmental Impacts?”
Wednesday 26th February, Helsinki
President Kari Kuusiniemi, the Supreme Administrative Court
Madam Chair, Ladies and Gentlemen,
originally Dr Tiina Paloniitty asked me to give a presentation in a half-day workshop for some scholars. Luckily, I was clever enough to recognize that I do not have anything worthy to share with dedicated scientists and proposed that it is better that she delivers a presentation and I will just say some opening words. However, I want to acknowledge that Tiina has done a terrific job to draft such a wonderful, topical and interesting whole day programme with prominent international speakers. It is a great pleasure to open this conference, even if I cannot take any credit about the arrangements.
The title of the seminar is ”Are climate impacts environmental impacts?”. Unfortunately, you could say that the theme is burningly actual. To this audience it is unnecessary to give any testimony about the alarming nature of global warming and its disastrous impacts on the globe, nature and humankind. Regarding this, you could even wonder, why it is relevant to ask, whether climate impacts are environmental impacts or not.
But it is a very relevant question indeed. Namely, the answer depends on the legislation that is applied in a certain case. Soon my friend and Australian colleague, chief judge Brian Preston will discuss issues linked to Environmental Impact Assessment and indirect climate impacts. In Finland, the role of climate impacts in decision-making by courts in environmental cases has been extremely limited. There are clear reasons for that. The Climate Act is a framework act with a programmatic approach leading to no legally effective decisions, which could be tested in courts of law. We have had some cases based on the EU emissions trading scheme, where the free allocation of emission allowances has been decided by the Supreme Administrative Court (SAC) in the last instance.
But if we scrutinize the most obvious piece of legislation – the Environmental Protection Act (the EPA) – there is no room for climate considerations in the permit procedure. How come?! Firstly, the EPA is a pollution control act, which applies to industrial and other activities that cause or may cause environmental pollution. Pollution is traditionally defined as a harmful environmental effect, typically felt on areas in the relative vicinity of an activity. The traditional nuisance law doctrine prevails in the background. Secondly, the EPA is based on the model of strictly legal discretion: the applicant has a right, a legally protected claim, to obtain the permit if the prerequisites specified in the applicable legislation are fulfilled. Even if the provisions are vague, the idea is crystal clear. It is unthinkable that a permit authority, not to speak about courts, would reject the application on the basis of consequences which are outside the sphere of application of the legislation. Even if combatting climate change is mentioned as one of the purposes of the EPA, the act does not include any effective instruments to meet the objective. If the EPA would have been based on a model with a concession-type permit system, where a political body would have a wide discretion in issuing of permits, climate impacts could be included in the permit consideration.
Cases linked to combatting of climate change have been raised in several countries. Probably the best-known example is the Urgenda litigation, where the Dutch Supreme Court, based on a private law action by an environmental NGO, ruled that the Dutch government is obliged to reduce, by the end of 2020 (this year!), emissions of greenhouse gases originating from Dutch soil by 25 percent, compared to 1990. The argumentation behind this judgment is based on international human rights law (about which we shall hear more this afternoon) and the international commitments of the State, especially the Paris Agreement.
As a judge, I feel worried about the development towards strategic litigation where courts are supposed take a pioneering role when the government and Parliament are unwilling to act. In my opinion, the primary responsibility should stay with the politically elected decision-makers. The doctrine of separation of powers must be respected. Obviously, courts must defend people´s human rights, including the right to life. But is the European Convention of Human Rights the right vehicle? Even if it is a living instrument, the articles are not easily adapted to solving problems like climate change. Courts do make decisions on openly political questions and their judgments often have wide ranging impact on industries, infrastructure, employment etc. However, the courts should be able to make these decisions applying law enacted by the Parliament. Political decision-makers should take the responsibility for deciding the means and time-tables for achieving political goals, even in the field of environmental policy.
Another important and interesting issue today is the role of scientific knowledge in environmental decision-making. In Finland, as e.g. in Australia, we employ expert judges in certain environmental cases. I am eagerly waiting for Tiina Paloniitty´s comments on a noteworthy case of the SAC concerning the Finnpulp biorefinery (previously called pulp mill). As member of the panel in the case, I confine my comments to an extreme minimum. With regard to the topic of this seminar, I want to make it absolutely univocal that climate effects of harvesting wood for the production played no role whatsoever in the judgment. The only things which mattered were the emissions into the lake and their relevance with respect to national legislation implementing the Water Framework Directive, as applied in the Weser judgment by the EU Court of Justice.
Ladies and gentlemen, I wish each and everyone a most interesting seminar day!