Challenging established legal doctrines in the face of the climate crisis: Four legal experts assess the outcome of the Finnish climate case
By Kristiina Ella Markkanen. First published in English on the 2035Legitimacy blog on 26 October 2023 and first published in Finnish on the 2035Legitimacy blog on 13 September 2023.
In November 2022, Greenpeace Nordic and the Finnish Association for Nature Conservation launched legal proceedings against the Finnish Government arguing that its inadequate climate action violated the Finnish Climate Change Act of 2022 and made the achievement of the country’s legally-binding 2035 climate neutrality target highly unlikely.
While the Supreme Administrative Court dismissed the appeal on procedural grounds, its decision effectively put the Finnish Government on notice: should the Government inaction with respect to the Finnish Climate Change Act persist, the Court indicated willingness to deviate from the well-established legal doctrine that inaction by public authorities is not a justiciable matter under Finnish law. We interviewed four legal experts to better understand the outcome and future implications of the Finnish Climate Case.
Based on best scientific knowledge, climate change is a matter of life and death for humankind that threatens the conditions of living of the current and future generations on Earth, unless rapid and effective measures are taken with regard to maintaining and increasing emission restrictions and carbon sinks. As a result, postponing measures transfers the responsibility to the future and makes it more difficult to achieve the maximum temperature increase of 1.5 degrees set as a goal in the Paris Agreement.
(para. 66 of Decision KHO:2023:62 by the Finnish Supreme Administrative Court.)
The above quote from the decision by the Supreme Administrative Court summarizes, in a few sentences, the urgency of the climate crisis.
In this blog post, we discuss the Finnish climate case with four legal experts. Three of them were involved in the case in different roles – as a judge, a civil servant representing the Finnish Government and as one of the legal experts assisting the two NGOs. We also interviewed a law professor from the University of Helsinki for an independent assessment of the case.
The Finnish Climate Case in a nutshell
In November 2022, Greenpeace Nordic and the Finnish Association for Nature Conservation lodged an appeal with the Supreme Administrative Court,[1] arguing that the Finnish Government had breached its obligations under Finland’s 2022 Climate Change Act. Specifically, the NGOs argued that the Government had failed to adopt sufficiently robust additional measures in response to the dramatic collapse of Finland’s forest carbon sink, putting in jeopardy the achievement of the country’s legally-binding climate targets, including the 2035 carbon neutrality target. We have described the appeal and the outcome in more detail in two previous blog posts.
The Supreme Administrative Court first requested a written response from the Government, which delegated the task to the Finnish Ministry of the Environment. It then allowed the two NGOs to submit a written rebuttal. In June 2023, the Supreme Administrative Court dismissed the case on procedural grounds, identifying the lack of a justiciable administrative decision by the Finnish Government as the reason for doing so.
The Court’s decision was based on a well-established doctrine of Finnish administrative law that inaction by public authorities does not constitute a justiciable matter. Against this background, it is remarkable that the Court’s decision was adopted based on a 3-2 vote. In their dissenting opinion ( ‘a voting opinion’ found at the end of the Court’s decision) the minority of two judges emphasizes, inter alia, the strong link between climate change and human rights, including those of future generations. The minority also indicated that:
(….) when assessing the availability of legal remedies in context of climate change mitigation, which is crucial to the future of humankind as a whole, the need to safeguard basic rights and ensure compliance with climate-related legal obligations must be taken into account in particular. This may (…) also require access to justice in a situation in which no actual administrative decision has been made.
According to the Court’s minority, the Government’s Annual Climate Report included a statement indicating that no additional climate measures were needed in the current situation and, for them, this constituted a justiciable decision.
Also the Court’s majority justified its decision with more detail than usual when dismissing a case on procedural grounds. The Court’s reasoning includes a groundbreaking statement according to which:
(…) the legality of the Government’s decision-making procedure in the sense intended by the appellants could be examined by a court of law in a case, in which failing to make the decision at this stage would lead to an end result in violation of the Climate Change Act, or the de facto actions of the Government would prove that it has no intention of making the appropriate decisions in order to achieve the targets and obligations required by the Act on a sufficiently rapid schedule..
(Para. 69 of the Court’s Decision KHO:2023:62, emphasis added)
The NGOs characterized the outcome as a step forward: the Court emphasized the significance of climate change as a ”crucial issue for humanity” and opened the door for future appeals in case the Government inaction continues.
What does the Court’ decision mean for future climate cases?
The majority of three judges based its conclusion on the fact that only four months had passed between the entry into force of Finland’ second Climate Change Act on 1 July 2022 and the adoption of the Government’s Annual Cliamte Report at the end of October. For them, the Government had only had a ”rather short” period of time to evaluate the need for additional measures and therefore the Court’s majority dismissed the appeal.
”I was involved in making the decision and belonged to the majority of judges. I dare to say that the difference between Court’s majority and minority opinion was subtle, not a wide gap,” says Kari Kuusiniemi, President of the Supreme Administrative Court.
Even if the NGOs’ first climate case was dismissed, all four legal experts interviewed for this blog post agree on one thing: it is highly unlikely to be the last Finnish climate case.
According to Tuomas Ojanen, Professor of Constitutional Law at the University of Helsinki, the threshold for filing new climate cases is now lower than in the past. This is because of the Supreme Administrative Court’s statement indicating that under certain conditions, similar cases could be considered as admissible in the future.
”After this decision, it looks likely that environmental NGOs and other potential appellants will scrutinize more closely what the Government does and does not do,” says Professor Ojanen.
In other words, the first Finnish Climate Case has paved the way for future cases. The Court may thus soon find itself in a situation where it needs to carefully consider its role and function: is this a case where the Court adheres to the traditional administrative law doctrines – or one where it must rise to defend human and fundamental rights as an essential part of Rule of Law?
What is the significance of the Court’s decision?
In the Finnish legal system, courts are traditionally very careful not to cross the line between law-application and law-making. Indeed, respecting the doctrine concerning the separation of powers is highly important for Kuusiniemi.
”A court must stay within the limits of its judicial function; the legislature is the ’king’ and sets the rules of the game. We respect the decisions of the legislature and give priority to political decision-makers in terms of making the rules,” emphasizes the President of the Finnish Supreme Administrative Court.
With this in mind, how do other legal experts feel about the outcome of Finland’s first climate case?
Kati Kulovesi, Professor of International Law at the University of Eastern Finland and Principal Investigator in the 2035Legitimacy research project, was part of the team of Finnish legal scholars supporting the two NGOs in preparing the Finnish Climate Case. She hopes that political decision-makers understand the significance of the outcome for both Rule of Law and Finland’s future:
”The Supreme Administrative Court’s sends a loud and clear message to policymakers: the Finnish Climate Change Act may be ‘only’ a framework law – yet it is legally binding and must be enforced like any other piece of legislation in a country adhering to the Rule of Law.”
”In my view, the Supreme Administrative Court’s decision sends a loud and clear message to policymakers: the Finnish Climate Change Act may be ‘only’ a framework law – yet it is legally binding and must be enforced like any other piece of legislation in a country adhering to the Rule of Law. Indeed, the Finnish climate case is very much about the credibility of our legal and political system, both in terms of respect for the Rule of Law and fundamental rights, as well as ensuring that the planet remains livable and sustainable for our children and their children,” she says.
Karin Cederlöf, Senior Officer of Legal Affairs at the Ministry of the Environment, was involved in drafting the Government’s written pleadings in the climate case. According to her, the Supreme Administrative Court’s decision emphasized the importance of climate targets: they will continue to be taken seriously when preparing Finland’s climate and energy policy.
”Civil servants are responsible for the lawfulness of their official actions, but ultimately, it is the political decision-makers that take the key decisions. If we [in the civil service] are requested to prepare additional climate policies, we will obviously prepare additional climate policies,” Cederlöf says.
Questions concerning access to justice
A new provision was recently inserted in the Finnish Climate Change Act concerning access to justice. There are two essential elements in this regard: justiciability (whether a matter is such that it can be subject to a judicial review) and standing (whether the parties have the capacity to bring the matter to a court). This amendment was adopted only after Greenpeace and the Finnish Association for Nature Conservation had lodged their appeal with the Supreme Administrative Court.
Would this new access to justice provision have influenced the Court’s decision, had it already been in force? According to Kari Kuusiniemi, President of the Supreme Administrative Court, the answer is negative.
”There was no justiciable decision by the Government for the Court to review. Therefore, we did not proceed to consider whether the two NGOs would have had the standing to bring the case before the Court,” he says.
Cederlöf from the Ministry of the Environment’s Cederlöf holds a similar view:
”The new provision inserted in the Climate Change Act grants environmental NGOs and certain other actors standing to request judicial review of Government decisions concerning climate plans prepared under the Climate Change Act. However, the case before the Supreme Administrative Court focused on the Government’s Annual Climate Report. Indeed, a key legal question in the Finnish Climate Case was whether Government decisions concerning the adoption of such reports are justiciable,” she says.
Professor Kulovesi, however, emphasizes that the two NGOs had to prepare a highly complex legal argument because the Government failed to adopt the specific administrative decisions required by the Climate Change Act. “The real issue at the heart of the Finnish Climate Case was the clear and urgent need for additional climate policies. As the Government failed to adopt the related decisions, the only option for the two NGOs was to try and link the case to the Government’s Annual Climate Report. It was always an uphill battle.”
”It is highly problematic, in my view, that when the Government breaches the Climate Change Act by remaining passive, it can escape judicial review. As we saw, access to justice wasn’t available in such a situation – at least for now.”
The two most relevant statutory climate plans are the Medium-term Climate Plan, prepared once in every four years, and the LULUCF Sector Climate Plan, prepared once in every eight years. Based on the new provision on access to justice in the Finnish Climate Change Act, NGOs, Regional State Administrative Agencies, and the Sámi Parliament of indigenous peoples’ representatives can request a judicial review of these and other plans prepared under the Climate Change Act.
”The new provision on access to justice is obviously highly important. However, from the perspective of Finland’s climate targets, having the right to request that the Court review the LULUCF Sector Climate Plan eight years from now is clearly inadequate,” Kulovesi says.
Indeed, according to Professor Kulovesi, the new provision concerning access to justice under the Climate Change Act has failed to solve the problems at the heart of Finland’s first climate case:
”It wasn’t exactly a surprise that the Supreme Administrative Court dismissed the Finnish Climate Case on procedural grounds. However, it is highly problematic, in my view, that when the Government breaches the Climate Change Act by remaining passive, it can escape judicial review. As we saw, access to justice wasn’t available in such a situation – at least for now.”
What does the outcome of the Finnish Climate Case mean for the future?
What does the Finnish Climate Case mean for the future? Professor Kulovesi considers the Supreme Administrative Court’s decision as a significant development even if the case was dismissed on procedural grounds.
She hopes that the relevant authorities have taken due account of the “warning signal” embedded in the Court’s decision and that this will lead to the Climate Change Act being applied more carefully in the future. In that case, there would be no need for further legal remedies, such as filing a complaint with the Chancellor of Justice, lodging a second climate appeal with the Supreme Administrative Court – or having recourse to the European Court of Human Rights.
Kulovesi emphasizes that it wasn’t easy for the two NGOs to try and challenge well-established legal doctrines. However, the situation with respect to Finland’s legally-binding climate targets was too serious; something simply had to be done.
”We had an excellent and dedicated group of researchers and NGO representatives working on the case. We also got some useful support from the Climate Litigation Network under the Urgenda Foundation. At one of our preparatory meetings, we decided that we should see our attempt to put in question the well-established legal doctrines concerning justiciability not only as a challenge, but also as an important opportunity – and in my view, the outcome of the case proves the point. The judges clearly understood the seriousness of the situation and an important step has now been taken towards broadening access to justice in cases concerning climate change – which the Court rightly characterized as a threat to the current and future generations”.
”We always knew it would be very difficult to win the case. Therefore, we had the idea of ’losing like winners’ as the second-best option in the back of our minds. I think we succeeded quite well in achieving the second-best outcome,” she says.
”The outcome of the case left the door open for future appeals.”
According to Karin Cederlöf of the Ministry of the Environment, it’s still too early to draw conclusions concerning the status of legal protection in Finland based solely on the Supreme Administrative Court’s decision.
”Fundamental rights and legal protection are, of course, essential in this case. However, I’m not sure if this case itself tells us anything new about legal protection other than that the outcome left the door open for future appeals,” she says.
Professor Tuomas Ojanen from the University of Helsinki, on the other hand, does not think that the question of legal protection arises in the context of climate litigation in the traditional sense:
”Legal protection has traditionally been linked to individual rights and obligations. I have always been one of those who cannot even think of issues related to climate change, nature, and the environment as individual rights,” he says. ”Instead, they should be seen as something common and shared, almost as intrinsic values.”
“This case was an important mechanism from the point of view of decision-making and exercising power. In addition, I see it as a significant tool for public participation and influence,” says Professor Ojanen.
A group of 2035Legitimacy researchers supported NGOs in preparing the climate appeal. The researchers openly express this role in their research related to the topic.
A translation of the Supreme Administrative Court’s decision in English is available here.
[1] Although appeals concerning decisions by Finnish public authorities must usually be submitted to local administrative courts, appeals against government decisions are lodged directly with the Supreme Administrative Court.
Photo by Rural Explorer on Unsplash