By Kati Kulovesi, Maiju Mähönen, Milka Sormunen, Annalisa Savaresi, Vilja Johansson and Martin Björklund. First published in the 2035Legitimacy blog on 12 June.
The Supreme Administrative Court of Finland gave its decision in the first Finnish climate case on 7 June 2023 (KHO:2023:62). After a 3-2 vote, it found the appeal launched by Greenpeace Nordic and the Finnish Association for Nature Conservation against the Finnish Government to be inadmissible on procedural grounds. According to the NGOs, the Government inaction effectively constituted an administrative decision not to adopt such additional climate policies as needed to achieve the binding climate targets under the Finnish Climate Act of 2022.
Although the outcome was disappointing from the perspective of the NGOs, the Court’s reasoning as well as the dissenting opinion attached to the decision stress the link between climate change and human rights. Overall, the Court’s decision contains positive, even ground-breaking elements in context of the Finnish legal system that will be explained and analysed below.
Facts of the Finnish climate case
The case concerned an argument by the two NGOs that the Finnish Government had breached its obligations under Finland’s 2022 Climate 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, thus putting in jeopardy the achievement of the country’s legally-binding climate targets, including the 2035 carbon neutrality target. Some of the authors of this blog have described the case and its background in detail in a previous blog post.
In Finland, the Supreme Administrative Court is the court of last resort in administrative cases whereas the Supreme Court exercises highest judicial powers in civil and criminal cases. 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. The Finnish climate case was therefore directly brought before the Supreme Administrative Court.
The case was heard by a chamber consisting of five judges. A question can be raised on why the Court did not address the case in a plenary setting. According to section 7 of the Supreme Administrative Court Act, far-reaching matters and matters of major importance may be referred to a plenary session or to a composition of all the members of a chamber. As the case was the first of its kind, it is possible to argue that it had major importance.
The challenge of admissibility: is there an administrative decision to appeal?
From the beginning, it was clear that admissibility would be a major challenge in the case. A key legal hurdle to overcome was the fact that the Finnish Government had not adopted an explicit administrative decision on the need for additional measures to ensure compliance with the climate targets set out in the Finnish Climate Act.
In Finnish administrative law, appeals must be based on an administrative decision; inaction by a public authority cannot as a rule constitute grounds for launching an appeal before administrative courts, unlike in some other countries.
According to the appellants, the need for additional measures to achieve the targets enshrined in the Climate Act was blatantly obvious from the information concerning the collapse of the Finnish carbon sink and related expert assessments, including by Finland’s statutory Climate Change Panel. The panel had called for an urgent government programme with various new policies designed to remedy the collapse of the carbon sink.
Against this background, the NGOs argued that Government’s failure to recognize the need for additional climate policies constituted a violation of Section 16.1 of the Finnish Climate Act. This provision requires the Government to adequately monitor progress towards the climate targets and, when necessary, adopt decisions on the need for additional measures.
So, in many ways, this was a catch-22 situation – the main motivation for the appeal was the failure by the Government to adopt a decision under the Climate Act on the need for additional climate policies. However, because of the Government’s failure to comply with the procedures required in the Act, there was no administrative decision to review.
The NGOs argued that the Government’s inaction was a factor underscoring the importance of granting them access to justice and legal remedies. In addition to arguments derived from national law, they relied on human rights, including Articles 6 and 13 of the European Convention on Human Rights. They argued that the latter right requires the State to give access to remedies to challenge important omissions, such as the one at the centre of their complaint.
The NGOs also invoked the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, including its Article 9.3, which requires Parties to ensure access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.
Judgment: The complaint is inadmissible “at this stage”
The Court’s majority based its ruling on the well-established principle in Finnish administrative law that inaction does not constitute grounds for an administrative appeal, thereby finding the case inadmissible. Nevertheless, it made some important statements on addressing climate change.
Firstly, the Court examined the question of admissibility more broadly than usually given that the case related to climate change, indicating that climate- related government obligations along with fundamental rights could justify an exception to the established rule concerning admissibility:
…the need to secure fundamental rights and fulfil international obligations for the sake of climate mitigation and adaptation, which is essential for the future of humanity, should be especially considered when reviewing the obligation of the public authorities to guarantee the observance of basic rights and liberties and human rights. This may also require the right to appeal in a situation where an actual administrative decision has not been made. (para 58)
The Court also emphasized:
According to best available science, climate change is a question of humanity’s fate, which threatens the living conditions of current and future generations on Earth, unless quick and effective measures are taken in terms of maintaining and increasing emission limits and carbon sinks. Therefore, postponing action shifts the responsibility into the future and makes it difficult to achieve the maximum 1.5 degree temperature goal enshrined in the Paris Agreement. The primary responsibility for fulfilling international [climate] obligations rests with democratically elected political decision makers. It is the court’s job to ensure, on the basis of an appeal, that the decisions of political decision-makers are in accordance with the law and do not prevent the realization of human and fundamental rights. (para 66)
Considering the facts of the case, the Court gave significant weight to the fact that only a short period of time had passed between the entry into force of Finland’s new Climate Act on 1 July 2022 and the Government’s adoption of its annual Climate Report to the Parliament on 27 October 2022, which, according to the appellants was the moment when the Government should have also adopted a decision on the need for additional climate policies. The Court also noted that the Government had indicated during the proceedings that it had begun to prepare additional policies and measures on carbon sinks. Therefore, the Court found no grounds to conclude that the Government’s conduct:
…would mean an illegal neglect of the objectives and obligations of the Climate Act. (para 70)
Therefore, the Court could not find the appeal admissible “at this stage”. It indicated, however, that this might change if the Government continued to remain passive:
—the legality of the Government’s conduct…. could be examined by the court in such a case that failure to make a decision… would lead to an outcome contrary to the Climate Act or that the Government’s actual actions would show that it has no intention of making appropriate decisions in order to achieve the goals and obligations required by the Climate Act in a sufficiently short time frame. (para 69)
According to the appellants who hailed the Court’s decision as historical, this sends a strong signal on the government’s obligations under the Climate Act to the political parties currently involved in negotiations to form a new coalition government following general elections in Finland in April 2023.
Dissenting opinion: emphasis on access to justice and rights of future generations
Also worth highlighting is the dissenting opinion whereby a minority of two judges argued that the Government’s adoption of the annual Climate Report to the Parliament should be regarded as including a decision on no need for additional measures. The dissenting judges argued that this constituted a legal basis for finding the appeal admissible.
In justifying their view, the minority emphasised access to justice and held that decisions on climate policy differ from traditional administrative decisions. The dissenting opinion also underlined access to justice as particularly important in the context of climate change adaptation and mitigation, which are central to the future of humanity, indicating that:
“States governed by the rule of law must have mechanisms in place to allow for the judicial review of actions that can be assessed to be related to fundamental rights, such as safeguarding a healthy and dignified environment also in the future.” (p. 21)
Moreover, the minority connected access to justice to the rights of future generations and argued that given their importance, state inaction may justify admissibility:
“Climate change and the response to it must be seen as an issue of importance to all, which is also fundamentally linked to safeguarding the human rights of future generations.” (p. 22)
The minority also stated that the principle of subsidiarity, according to which alleged violations of human rights must be addressed by national courts from the outset, supported admissibility of the case.
The bigger picture: The Finnish climate case in international context
This judgment is highly significant as it sets the contours of the level of scrutiny that the Supreme Administrative Court of Finland is willing to exercise over the implementation of the obligations enshrined in the 2022 Climate Act. While the Court refused to consider the NGOs’ appeal “at this stage,” it clearly indicated that it may be willing to make an exception in the context of climate change to the established rule that inaction by public authorities cannot be subject to judicial review before Finnish courts.
This is one of the first climate judgments of its kind to be decided globally. As we wrote earlier on this blog, the Finnish Climate Act is an example of national framework laws on climate change that have been adopted all over the world, using the UK Climate Change Act as an inspiration.
The Finnish climate case is part of a new wave of lawsuits – like Friends of the Irish Environment v. Ireland – which specifically focus on the implementation of climate obligations enshrined in framework climate legislation. Judgements such as the one handed down by the Supreme Administrative Court of Finland are therefore important, as they shed light on how courts might address challenges associated with inadequate progress in the implementation of framework climate legislation.
In this specific case, the Supreme Administrative Court was not quite ready to go as far as its Irish counterpart and order the government to take action, due to the reasons highlighted above. The case therefore illustrates that challenging state inaction is difficult, which is problematic from the perspective of access to justice. In March 2023, an explicit provision was added to the Finnish Climate Act, providing access to justice to environmental NGOs, indigenous peoples and various other stakeholders concerning decisions on climate plans under the Climate Act. Given the relatively narrow scope of the provision, it nevertheless does not close the gap revealed by the Supreme Administrative Court’s decision, as it does not provide for access to justice in cases of governmental inaction.
The Supreme Administrative Court’s decision shows, however, that the Court is aware of the important link between climate change and human rights as well as the importance of ensuring that climate legislation is properly implemented and enforced. It is clearly implied that it might, if the government persists in its passive approach, find a similar appeal admissible in the future. The Court has therefore effectively put the Government on notice and may still review the compatibility of its conduct with the Climate Act.
A pattern may therefore be slowly emerging, with courts ensuring that framework climate laws are complied with and that public authorities undertake the measures that they are required to adopt, in line with said laws. While this process is encouraging and largely to be expected, it raises familiar questions over the enforcement of environmental laws and whether courts are sympathetic enough to the protection of environmental interests. In this connection, climate legislation and litigation are just at the beginning of a long journey, with yet more challenges concerning effectiveness and enforcement of the law down the road.
Kati Kulovesi, Maiju Mähönen, Milka Sormunen, Vilja Johansson and Martin Björklund have provided legal advice and supported the NGOs in preparing the Finnish climate case.
Kati Kulovesi is Professor of international law at the University of Eastern Finland, where she co-directs the Center for Climate Change, Energy and Environmental Law (CCEEL). Her expertise covers international, EU and Finnish climate law and she leads the 2035Legitimacy project funded by the Finnish Strategic Research Council. She was a member of the Finnish Climate Change Panel in 2014-2019, contributing to the project recommending that Finland be carbon neutral by 2035.
Maiju Mähönen works as a PhD researcher at CCEEL at the University of Eastern Finland. Her research has focused especially on the reform of Finland’s climate act and on EU climate law. Her PhD focuses on access to justice in climate matters in under EU law.
Annalisa Savaresi is Associate Professor of international environmental law at CCEEL, at the University of Eastern Finland. She has published widely, including on climate change and forests, climate litigation and human rights.
Milka Sormunen is a postdoctoral researcher at the Erik Castrén Institute, Faculty of Law, University of Helsinki. Her work focuses on human rights law, European law and constitutional law.
Vilja Johansson is a PhD researcher at CCEEL at the University of Eastern Finland. Her research focuses on the evolving legal concept of just transition, including in international, European and comparative law.
Martin Björklund teaches domestic public and administrative law at the Swedish School of Social Sciences at the University of Helsinki.