Is the EU Greenwashing Us? How Climate Litigation Aims to Close the Gap Between Policy and Science

Earlier this year, two Non-Governmental Organisations' cases accused the European Union of failing to base its climate policies on scientific evidence. Unlike the previous climate litigation, these cases directly target specific EU laws, exposing their shortcomings in meeting proposed climate goals – raising a critical question: is the EU greenwashing us?

Non-Governmental Organisations accuse the EU of adopting climate policies lacking scientific evidence

On 27 August 2024, the Climate Action Network, the Global Legal Action Network and Opportunity Green presented their cases to the GC, claiming that the EU's climate targets are lacking. For both these two cases brought by different claims the grounds are very similar: climate policies will not work effectively if they are not based on the best available scientific evidence.

Two significant policies will be under scrutiny: the EU’s 2030 climate targets, which mandate binding annual greenhouse gas emission reductions for every Member State, and the Taxonomy rules. Under the 2030 climate targets, countries are required to reduce their greenhouse gas emissions by 40 percent below 2005 levels by 2030. According to the Commission, this reduction will contribute to the long-term goal of climate neutrality in the Union by 2050, with the aim of achieving negative emissions thereafter. The EU Taxonomy Regulation sets the criteria to decide if an economic activity is environmentally sustainable, helping determine if investments in that activity are considered sustainable.

The Non-Governmental Organisations (NGOs) contend that the EU’s overall climate ambition is ‘alarmingly off-track from the 1.5º C limit of the Paris Agreement’. Plus, they state that the 2030 targets are in violation of environmental law and international commitments, including the Charter of Fundamental Rights of the European Union, Article 191 of the Treaty on the Functioning of the European Union and the Paris Agreement. Additionally, they claim that the EU was obliged to assess the impacts of climate change on relevant fundamental rights in its Impact Assessment of the 2030 targets, and that the Commission failed to do so.

The next day, on 28 August 2024, Opportunity Green and four other NGOs announced that they were bringing legal challenges against the Commission because of its inclusion of aircrafts and ships in the EU’s sustainable finance rules. According to the Taxonomy rules some aircrafts and ships will be labelled as green provided that they meet specific CO2 emission criteria. The claimants believe these new rules set overly lenient standards.

Insufficient Scientific Evidence Undermines the Effectiveness of EU Climate Change Policies

In 2023, the NGOs urged the Commission during an internal review to revise its climate targets and aim for a 40per cent reduction in emissions by the end of 2030.The Commission argued that there were no provisions that obligated the institution to conduct the science-based assessments suggested by the applicants. And while there are no rules in the EU Treaties that force the Commission to conduct the mentioned assessments, it is true that they are a logical part of the feasibility analysis and impact assessment, which in turn are pillars to the Commission’s own better regulation agenda. The overall purpose is to draft adequate legislation that not only respects the subsidiarity and proportionality principles, but that can also be effectively implemented by the Member States.

By rejecting the applicants' request, the Commission disregards the European Court of Human Rights (ECtHR) ruling on the Swiss government ‘s failure to adopt adequate policies to fight the climate crisis. In this case, the Court concluded that government policies must set science-based climate targets aligned with limiting global warming to 1.5ºC. The Commission is also failing to follow up the EU Treaties which already include binding norms on environmental protection. For example, Article 11 of the Treaty on the Functioning of the European Union (TFEU) requires the EU to integrate environmental protection requirements in the formulation of its policies, thus playing a central role in the achievement of the EU’s broader objectives. Similarly, Article 191 of the TFEU obliges the EU to uphold its stated objectives, including preserving, protecting, and improving environmental quality.

Nevertheless, the CAN and GLAN’s case was given priority status by the Court, as is its prerogative via Article 67(2) of the Rules of Procedure of the General Court, which means that it will be heard as soon as 2025 and possibly concluded in 2026. This is undoubtedly a consequence of the ECHR ruling which underscored the urgency and gravity of claims like those in this case, highlighting that insufficient action by decision-makers is unacceptable.

The Commission’s approach to setting climate targets has often been seen as insufficient. This is largely due to its tendency to follow established processes rather than seeking transformative change, relying on incremental improvements to existing frameworks and that climate action is often competing with other priorities, such as economic growth and energy security.

Together, these factors lead to climate targets that result in short-term solutions and impede the needed aggressive shifts to comply with international obligations and EU citizens’ expectations for climate action. Nevertheless, claiming that legal obligations under EU law will meet international climate commitments or achieve climate neutrality by 2050, while knowing these rules are not enough to do so, is a form of institutionalised greenwashing.

Can climate litigation claims drive changes in climate policy?

Despite legal standing challenges NGOs face, the world has seen, over the years, an unprecedented number of climate litigation cases brought by these entities. The cases discussed in this blog post     will be added to that list. 

Can climate litigation help us achieve adequate climate neutrality targets? The answer to this question is not fully clear. For example, while the ECHR ruling in April was a win for climate advocates, Swiss leaders have said they won’t follow the decision. This shows that, even though climate lawsuits can bring attention to the issue, they don’t always push politicians to make the bold decisions needed for strong climate action. This raises the question of whether courts should play a bigger role in climate change rulings. These two cases give the General Court a chance to do just that, as it has the power to rule that EU legislation is inconsistent with EU Treaties or fundamental rights. The Courts can push for change by being clear in cases where the current regulations do not meet the legal or scientific standards.

Differently from the ECHR ruling, these cases directly challenge specific EU laws, highlighting their shortcomings in achieving climate targets. The CAN and GLAN case seeks a revision of Member States’ greenhouse gas limits under the Effort Sharing Regulation, arguing they fall short of reducing emissions effectively. The Opportunity Green case calls for the exclusion of fossil fuel plants and ships from the ‘sustainable economic activity’ label to misplace investments that do not contribute to a low-carbon economy. These lawsuits reflect that the EU’s climate ambition remains limited, in part due to its isolated decision-making process. They expose the gaps of its policies, alerting us to the fact that more unified climate action across the Member States is needed.