The Plaumann Problem: How the People's Climate Case Widened the Gap to Judicial Review of the EU's Inadequate Climate Policy.

• Author: Brown, Caroline

1. Introduction

   The European Court of Justice (ECJ) in Carvalho and Others v. European Union, (1) affirmed a significant but expected ruling on the plight of individuals concerned about climate change's impacts on their fundamental rights, and their access to the European Courts to do something about it. Coined the "People's Climate Case," this judgment presents another example of how the ECJ's longstanding and stringent interpretation of locus standi (2) derived from Plaumann v. Commission, (3) effectively prevents judicial review of the European Union (EU)'s climate policies. This Note first addresses the source and rationale of the Court's standing interpretation as applied to the Carvalho case. The Note further explains the judgment's display of the EU's access to justice problem in climate change actions, which leaves parties suffering violations of their fundamental rights without access to review or relief.

2. Background Law

   Because the ECJ dismissed Carvalho on procedural grounds, a brief summary on the standing requirements in the EU is prudent. Standing is the procedural requirement for the admissibility of a claim to be heard before the actual merits of a claim are examined. (4) Article 263 of the Treaty of the Functioning Union (TFEU) (5) provides for judicial review of the actions of Community Institutions such as the European Council or Parliament. (6) In addition to providing such institutions with the right to challenge EU acts, the TFEU allows natural and legal persons, i.e. 'non-privileged' applicants, a limited right to bring actions of annulment. (7) An action for annulment, governed by Article 263(4) TFEU, is essentially a request to the court to void a particular EU act. (8) Under Article 263(4) TFEU, actions for annulment can be brought by private individuals only in three types of cases:

   Where a decision is addressed to the applicant; Where a decision is addressed to third parties and applicant claims that it is of 'direct and individual concern' to him; Where a decision is 'in the form of' a regulation and is of a 'direct and individual concern' to the applicant. (9) Meeting the direct concern criteria requires a showing that the contested act directly affects the applicants' legal situations and does not include implementing measures by another party, such as an individual Member State of the EU. (10) This means that the applicant must show a direct link between the harm suffered and the enacted regulation. The individual concern requirement requires applicants to show that the contested act affects them in a completely individual and unique way. The primary definitional source for individual concern comes from the 1963 case Plaumann v. Commission. (11) The Court in Plaumann enacted a test evaluating whether the contested act affects individuals "by reason of certain attributes that are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the addressee." (12) The direct concern and individual concern criteria are both essential, so if an applicant cannot show she is individually concerned by an act, it is unnecessary for the court to even inquire whether the she is directly concerned. (13)

3. Facts and Procedural History

   The Carvalho appeal was brought by families from Portugal, Italy, Germany, Romania, France, Kenya, Fiji, and the Sami Youth Association Saminuorra (14) who were each concerned that the European Union's (EU) greenhouse gas (GHG) emission reduction targets were not aggressive enough to conform with EU human rights and international law and to address the climate crisis facing the EU. (15) In 2018, the EU enacted a legislative package consisting of three emission regulations including the Emission Trading Directive, (16) the GHG Regulation, (17) and the LULUCF Regulation. (18) The EU enacted these regulations in response to its signature to the Paris Agreement, which jointly committed the EU and its Member States to comply through their nationally determined contributions (19) to reduce GHGs. (20) The EU's emission regulations set out to reduce GHGs by 40% by 2030 as compared to 1990 levels. (21) The applicants, each living and working in agricultural and tourism related areas, were experiencing climate change related issues including rising sea levels, fires, flooding, high temperatures, and droughts which had negatively affected their homes, livelihoods, and traditional family occupations. (22) Dissatisfied with what they felt like were wholly inadequate reduction targets to address the climate crisis, the applicants filed an action for annulment against the European Parliament (23) and the European Council (24) (Council) in the European Union General Court (GC). (25) In their brief to the GC, the applicants described in detail the hardships they bore as a result of climate change's increasingly severe effects. (26) The applicants first asked the GC to declare the EU's legislative package regarding GHG emissions unlawful because the overall 40% reduction the legislative package imposed was not aggressive enough. (27) To meet the third criteria for standing, "where a decision is 'in the form of' a regulation and is of a 'direct and individual concern' to the applicant," (28) the applicants needed to meet the standard for individual concern set forth in Plaumann, which requires proof the contested acts affect applicants completely uniquely and differently from any other individuals. (29) To satisfy the Plaumann criteria, the applicants claimed they were individually concerned because of the unique ways climate change affected their independent legal situations. (30)

   They also argued they satisfied the individual concern criteria interpretation set forth in Plaumann because the EU's target reduction point was insufficient to prevent climate change from harming their basic fundamental rights, and the EU has higher rank legal obligations to respect their fundamental rights. (31) Specifically, the applicants alleged the legislative package, because it would not prevent the worst impacts of climate change, would threaten their fundamental rights to life, integrity, children, work, business, property, and to equal treatment. (32) The applicants explained these fundamental rights protections extended to the applicants living outside the EU in Kenya and Fiji based on the traditional understanding that international human rights transcend national territories. (33)

   To explain the connection between the EU's legislative package, climate change and the applicants' injuries, the applicants cited the Intergovernmental Panel on Climate Change (IPCC)'s 5th Assessment Report. (34) The IPCC uses models to project the impact of GHG emissions on the climate in the future, and considers the impact of varying GHG emission levels and their contribution to overall global warming and its devastating effects. (35) Its reports in 2014 warned of the damage caused by further warming and compared the impact of either a 1.5 Celsius or 2.0 Celsius rise in temperatures compared to pre-industrial levels. (36) The applicants contend that based on: (1) the IPCC's overall assessment; (37) (2) the EU's acceptance of the connection between GHG emissions and increases in temperatures; (38) and (3) the EU's GHG targets surpassing the EU's GHG budget under the Paris Agreement, the emission targets infringe higher rank norms and law, because the targets would not prevent "significant harm" to the applicants. (39)

   At the same time, the applicants recognized the stringency of the Plaumann criteria, and suggested the court modify its interpretation of "individual concern" to afford them standing. (40) The applicants argued the Court's current interpretation was prohibitively narrow, and resulted in the EU's legislative package being immune from judicial review. (41) This immunity from review, they stressed, conflicted with their fundamental right to effective judicial protection under Article 47 of the Charter of the Fundamental Rights. (42) They suggested the GC should find them individually concerned and affected, even if other people might also be affected. (43)

   The applicants also rejected any suggestion that an action before the individual Member States national courts was feasible, because of those courts' limited jurisdictional power to offer relief. (44) The applicants requested the GC annul the legislative package and order the Defendants to adopt more stringent reduction measures for GHG emissions. (45)

   The Council argued the action was inadmissible (46) and asked the GC to dismiss the action for lack of standing based on the applicants' failure to show the legislative package affected their individual legal situations. (47) The Council argued the applicants were not individually concerned because the legislative package is of "general nature," and therefore could not apply individually to any natural or legal persons. (48)

   On May 8, 2019, the GC found the applicants, including the Sami association, lacked standing to bring suit and did not reach the merits of their arguments. (49) The GC first noted that because the package was legislative in nature rather than regulatory, and did not identify the applicants as addressees, the first and third scenarios for direct concern under Article 263(4) TFEU were inapplicable. (50) The only other potentially applicable scenario under Article 263 TFEU was the second scenario, which required the applicant...