Clifford Chance

Polish citizens are suing the Polish government in five separate, but related, cases for inaction on the climate crisis. They are demanding recognition of the state's responsibility to ensure climate security and an order for Poland to comply with its international obligations under the Paris Agreement.

Participants

Represented by the Client Earth Foundation Prawnicy dla Ziemi (Lawyers for the Earth), the five claimants range from an ecotourism business owner to a mother acting out of concern for her son's future. Whilst all come from different backgrounds, they all make a common claim to have been personally harmed by climate change; arguing that their personal and human rights have been violated and/or threatened by the Polish authorities' failure to actively counteract the climate crisis.

The defendant in each case is the State Treasury, represented by the ministers responsible for the implementation of environmental policy, national energy policy, transport, national energy investments and sustainable development.

Each case will be heard by a separate Polish district court.

The Claims

Unlike in previous climate-related cases in Poland (relating in particular to pollution and air quality), the aim is not to obtain compensation but to compel the government to take action to address Greenhouse Gas ("GHG") emission. In this regard, the cases follow a trend of similar actions against states in recent years, including France, Germany, Ireland, Australia, and more recently, Italy and Belgium.

The claimants accuse the Polish state of climate negligence involving: (i) a long-standing coal subsidy policy, (ii) restricting the development of renewable energy sources ("RES"), (iii) failure to eliminate old, high-emission vehicles from roads, (iv) ineffective attempts to electrify transport, and (v) a lack of a consistent strategy to reduce emissions from the residential and industrial sectors.

As in other European cases, the claimants are seeking more tangible efforts by the state to meet its climate commitments; asking the courts to impose an obligation on the government to achieve climate neutrality by 2043.

Poland falls short of being compatible with EU targets and the Paris Agreement 1.5° C goal

According to the Client Earth Foundation, Poland has one of the least ambitious targets for reducing GHG emissions. It is the only EU country yet to declare a goal of climate neutrality by 2050.

Poland ranks third in the EU in terms of total CO2 emissions, emitting above average levels compared to its national GDP. It is acknowledged (for example by the European Environment Agency) that the state failed to meet its 2020 climate commitments and, absent any meaningful action, current indications are that Poland will miss its 2030 targets too.

The claimants are understood to have submitted scientific evidence provided by both Climate Analytics and the progressive Polish think tank Instrat, which specialises in advising on public policies (Instrat Policy Paper 03/2021), to demonstrate Poland's failings. Briefings published by both organisations conclude that Poland's climate policy diverges from the requirements of the Paris Agreement and EU climate policy. For example, in February 2021, the Polish government approved a plan (in a strategic document entitled the "Energy Policy of Poland until 2040") to reduce GHG emissions by 2030 by 30% compared to 1990 levels. By comparison, the EU's key climate targets include a commitment for at least a 40% reduction in GHG emissions by 2030 (compared to 1990 levels).

The right to a healthy environment?

In support of their claims, the claimants are invoking various personal rights. Under Polish law, recognised personal rights must be respected by others, and can be enforced by prohibitory and injunctive measures provided for in the Civil Code.

The claimants argue that several personal rights are being infringed including the well-recognised rights to health, respect for privacy, place of residence and/or family life. In addition, the claimants argue that a right to climate security should be respected as well as the right to a healthy environment.

As noted by the Client Earth Foundation "[t]he cases are novel legally because the claimants are asking the court to order that Polish civil law includes a legally enforceable right to a healthy environment encompassing a right to live in safe and stable climatic conditions."

The right to a healthy environment is increasingly being invoked by climate change activists to challenge the perceived inaction of governments in combatting the climate crisis.

Impact of the Supreme Court resolution concerning the right to a healthy environment

The claims brought by the five claimants might be affected by the recent resolution of the Supreme Court of Poland dated 28 May 2021 (https://www.sn.pl/sites/orzecznictwo/OrzeczeniaHTML/iii czp 27-20-1.docx.html). In its reasoning, which was published on 16 August 2021, the Supreme Court found that the right to a healthy (clean) environment is not a personal right protected in and of itself under the Polish Civil Code ("Resolution").

The Resolution brings a clarity to the issue which has been the subject of diverging interpretations by the lower courts in cases brought by climate change activists and celebrities in recent years, in which they requested compensation or punitive damages due to the lack of, or ineffective actions by, Polish authorities in tackling the issues of smog and GHG emissions.

While the Supreme Court refused to recognize the right to a healthy environment as a personal right, the reasoning of the Resolution provides helpful guidance for future claims concerning the impact of climate change. The Supreme Court found that the natural environment is a common good of all citizens – not a personal right – and for this reason found that the right to live in a healthy environment cannot be recognized as a personal right. At the same time, the Supreme Court quite categorically found that "air, water and soil quality standards were determined scientifically to specify the conditions in which the health and liberties of man are free of threats. Failing to comply with them or even a single instance of breaching them harms the personal rights of health, freedom and privacy by threatening them or even, if the circumstances of the case show this, by violating them". Therefore, the Supreme Court did not exclude the possibility that claimants could bring claims alleging climate negligence by the Polish state, but rather offered claimants a path to frame such claims based on the infringement of their personal rights.