Finland’s first climate lawsuit: Watching the forest sink
By Kati Kulovesi, Professor of International Law, Annalisa Savaresi, Associate Professor of International Environmental Law, Maiju Mähönen, Project Researcher and Otto Bruun, Junior Researcher
In November 2022, Greenpeace and the Finnish Union for the Conservation of Nature filed Finland’s first climate case. The applicants claim that the Finnish Government has breached its obligations under Finland’s 2022 Climate Change Act, which includes the target for Finland to become carbon neutral by 2035. Specifically, they argue that the Government has not adopted 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 2035 carbon neutrality target. This blog post outlines the background of the case and the key questions raised in the lawsuit, placing the Finnish climate case into the context of European climate law and litigation.
From hero to zero? Finland’s 2035 carbon neutrality target and the collapse of its carbon sink
As reported earlier on this blog, on 25 May 2022 the Finnish Parliament adopted a new Climate Change Act (423/2022), which enshrines in law the target for the country to be carbon neutral by 2035. Finland’s greenhouse gas emissions are set to continue decreasing and removals to continue increasing thereafter, thus making Finland carbon negative. Finland’s carbon neutrality target was set based on the recommendations prepared by Finland’s Climate Change Panel – an independent scientific advisory body tasked with advising the Government on climate policy. The panel’s recommendations were developed to align Finland’s climate action with the Paris Agreement’s goal to limit global warming to 1.5°C.
The Finnish Parliament adopted the Climate Change Act with a clear majority, and international media praised Finland’s carbon neutrality target for setting an international benchmark. On the very day the new Climate Change Act was adopted, however, provisional statistics showed that Finland’s land use, land-use change and forestry (LULUCF) sector had for the first time turned into a source of greenhouse gas emissions.
Finland’s 2021 greenhouse gas inventory data, released in December 2022, confirmed that in 2021 Finland’s LULUCF sector released an equivalent of 0,9 million tons of carbon dioxide from the atmosphere, while in 2020 it removed more than 9, 2 million tons of carbon dioxide.
It is normal for the size of the carbon sink to fluctuate annually. However, the drop witnessed in 2021 is unprecedented. Overall, while other Finnish economic sectors have reduced their greenhouse gas emissions by 33% since 1990, the LULUCF sector is trending in the opposite direction. In 1990, it was a carbon sink of more than 25 million tons of carbon dioxide equivalent, while in 2021, it had become a source of greenhouse gas emissions.
The Government responded to the provisional statistics in July 2022, by agreeing on a package of measures, the adequacy of which has been challenged by the applicant NGOs. It requested the Finnish Natural Resources Agency (LUKE) to analyse the reasons behind this abrupt change in circumstances. The Government also decided to evaluate the Forest Act as well as the possibility of increasing fees applicable to land-use conversion, so as to decrease deforestation. It agreed that the forthcoming national forest strategy should take the climate targets into consideration. Finally, the Government agreed to include in its 2023 budget funding to promote carbon sequestration and climate-friendly forest management.
In its report published at the end of 2022, LUKE confirmed that the reduction in Finland’s forest carbon sink has been caused mainly by a combination of high rates of felling and dwindling forest growth.
Forest logging in Finland has been particularly intense in recent years. Over 60% of Finnish forests are owned by private citizens – with an estimated half a million forest owners in the country. Felling volumes are not regulated by law but fluctuate annually, based on demand for wood pulp and biomass, with thousands of private owners deciding whether to cut their trees or not. In 2021, felling reached the exceptionally high level of 76,3 million cubic meters of stemwood, the second largest ever recorded in Finland. The Finnish forest industry experienced significant growth in 2021, resulting in hiking demand and prices for raw material, making it attractive for forest owners to cut their forests.
At the same time, forest growth in Finland decreased by a total of 4.3 million cubic metres year on year. This is possibly due to a combination of human-induced and natural causes – such as exceptionally dry summers. Other contributing factors include changes in the age structure of the Finnish forest, which are now mostly 60-80 years old, whereas growth is fastest in forests that are 21-60 years old.
The Finnish Climate Change Panel has described the situation as “very serious” and demanded that the Finnish Government urgently adopt measures to remedy the collapse in the forest carbon sink. If it does not, Finland will not be able to achieve carbon neutrality by 2035. This state of affairs has put in jeopardy also Finland’s compliance with the EU’s Land Use and Forestry Regulation 2018/841 (LULUCF Regulation) and its soon to be published revision.[1]
The Finnish Climate Change Act does not define the share of removals needed to achieve carbon neutrality. However, Finland’s Medium-term Climate Plan and the LULUCF Sector Climate Plan are based on the assumption that the LULUCF sector remains a carbon sink of 21 million tons of carbon dioxide equivalent. Thus, the gap in Finland’s forest carbon sink presently stands at nearly 22 million tons of carbon dioxide equivalent. To illustrate the significance of the gap, Finland’s total emissions in 2021 were 48.9 million tons of carbon dioxide equivalent, including LULUCF.
Faced with this staggering and unprecedented set of circumstances, in November 2022 two environmental NGOs launched a legal challenge against the Finnish Government.
Finland’s Climate Change Act and the obligation to adopt ‘additional measures ‘
The Finnish Climate Change Act includes the target for the country be carbon neutral by 2035 and reach climate negativity thereafter. It also includes an intermediate target for the country to reduce emissions by at least 60% from 1990 levels by 2030 and by at least 80% by 2040. The emission reduction target for 2050 is at least 90%, but ‘aiming to ‘reduce emissions by 95%. As is clear from the intermediate targets, removals are expected to play an important role in reaching carbon neutrality by 2035.
Like other framework climate change laws, the Finnish Climate Change Act requires the Government to adopt plans – including long- and mid-term climate plans, adaptation plan and a climate plan for the LULUCF sector. One of the main functions of the mitigation-related plans is to outline detailed policies and measures for reaching the targets defined by the Climate Change Act, including carbon neutrality by 2035. The Government must annually present to Parliament a report describing, among others, trends in Finnish greenhouse gas emissions and removals, and whether the existing and planned measures are sufficient to reach the climate targets set for the next 15 years, or whether additional measures are needed (Art. 18).
The Government adopted its latest annual progress report in October 2022. While information on the collapse of the forest carbon sink was already available at the time and the Government had taken some steps to address the situation, the report failed to recognise the need for additional measures and to analyse the situation in detail, merely mentioning ‘considerable uncertainties’ concerning the carbon sink.
The applicants in the Finnish climate case argue that the Government breached the Climate Change Act by failing both to properly assess the need for additional measures and to take a decision on the need to adopt such measures. This is in spite of the fact that the 2035 carbon neutrality objective clearly cannot be achieved without new measures.
Article 16.1 of the Climate Change Act requires the Government to “sufficiently” monitor progress towards the achievement of the Act’s targets and the implementation of the related climate policy plans. Based on this monitoring, the Government must, “if necessary” take a decision whereby it identifies the need for additional measures.
The expression ‘if necessary’ leaves to the Government some discretion on how to respond to the data emerging from the monitoring. However, the applicants argue that, if the drastic collapse of the carbon sink does not meet the necessity threshold, the requirement to adopt additional measures would be meaningless.
Whenever the Government identifies the need for additional measures, Article 16.1 requires it to adopt such additional measures ‘as necessary’ to achieve the Act’s targets. The applicants argue that the measures adopted by the Government in July 2022 (detailed above) fail to meet this requirement. Notably, the climate impacts of these measures have not been assessed. According to the applicants, the Climate Change Act requires additional measures to re-align Finland’s emissions and removals with the Act’s targets, including that on carbon neutrality.
Finally, the applicants argue that the Finnish Government has breached the Climate Change Act by not launching a climate plan revision process, as required by Article 17. Pursuant to this provision, the Government must, whenever it finds that additional measures are necessary, launch a process to revise the relevant climate policy plans. According to the applicants, the revision process would provide a valuable opportunity for the Government to study in detail the available policy options and their climate impacts. Importantly, the Act requires that this process include the consultation of stakeholders, giving the public and various expert bodies an opportunity to provide input concerning the scale and design of additional measures.
The Finnish political context
The Finnish Climate Change Act is a flagship deliverable of the Finnish Government’s programme for 2019-2023. Governments in Finland typically consist of multi-party coalitions. The ruling government is a coalition of five parties, including, amongst others, the Greens and the Centre Party. The Greens have a strong environmental policy agenda, and their core electorate resides in urban areas. The Centre Party’s core electorate resides mainly in rural areas and largely consists of farmers and forest owners. Since the beginning of the ruling government coalition in 2019, these two parties have often been at loggerheads over climate and environmental policy, especially on matters concerning forests, bringing the Government to the brink of collapse twice.
These faultlines are evident in the Government’s response to the collapse of Finland’s forest carbon sink. The Environment Minister, Maria Ohisalo – who is affiliated to the Greens – has called for additional measures to strengthen the forest carbon sink and reduce felling. The Minister for Agriculture and Forestry, Antti Kurvinen – who is affiliated to the Center Party – has indicated that felling could even be increased and called for measures to boost forest growth, such as fertilizers.
Against this background, the Government has only been able to agree on modest and piecemeal measures to address the collapsing forest carbon sink.
Overall, an ambitious political response is unlikely during this Government’s term, also considering that general elections will take place in April 2023.
In the meantime, the Supreme Administrative Court has requested the Finnish Government to file its written submission, indicating that it plans to decide the case in the spring of 2023.
The Finnish climate case in perspective
The Finnish climate case raises crucial questions over public authorities’ accountability for complying with obligations set in climate legislation. The case also implicitly raises procedural questions concerning citizens’ access to courts to challenge government’s climate action. Both sets of questions have wide resonance, well beyond Finland.
As discussed at a 2035Legitimacy project event in 2022, litigation in support of climate action is increasingly common across the EU. Some EU Member States’ courts have delivered milestone judgements in support of climate action, ordering governments and parliaments to adopt more ambitious climate change measures – e.g. Urgenda Foundation v The Netherlands. These court decisions, however, have stirred some controversy over the doctrine of separation of powers and judicial activism.
The Finnish climate case is part of a new wave of lawsuits – like Friends of the Irish Environment v. Ireland – which focus on the implementation of climate targets that are already enshrined in national legislation. This type of climate litigation is less controversial politically, as it does not raise significant challenges regarding the role of the courts and the division of powers. Instead, these lawsuits merely ask the courts to do what they normally do: ensure that the law is complied with and that the public authorities undertake the measures that they are required to adopt, in line with legislation.
The Finnish Climate Act was drafted building on the template of the UK’s Climate Change Act. This regulatory model has become widespread especially in Europe, following the ‘Big Ask’ NGO campaign launched in the UK in 2005 and subsequently in 16 other European countries – several of which have since adopted dedicated climate acts.
While the design of the Finnish Climate Change Act was adjusted to accommodate domestic legal and political considerations, its core elements are broadly similar to those of climate change framework laws adopted elsewhere. The Finnish climate case might therefore shed light on how to resolve challenges experienced in the implementation of climate legislation, when faced with inadequate progress on the achievement of climate targets.
If it decides to hear the case on the merits, Finland’s Supreme Administrative Court might therefore shed light on how to resolve the crucial questions the accountability of governments for climate action and over the effectiveness of climate legislation.
The Finnish climate case will be discussed along with other recent climate lawsuits concerning the LULUCF sector brought in Germany and Sweden at a webinar organized by CCEEL, the GreenDealNet project and Greenpeace on 17 February 2023 at 11:30 CET: https://www.greenpeace.org/finland/blogit/ilmastonmuutos/webinar-taking-inaction-on-carbon-sinks-to-court/.
Kati Kulovesi is Professor of international law at the University of Eastern Finland, where she heads the Center for Climate Change, Energy and Environmental Law (CCEEL). She also leads the 2035Legitimacy project funded by the 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.
Annalisa Savaresi is Associate Professor of international law at the University of Eastern Finland, CCEEL.
Otto Bruun works as a junior researcher at the University of Eastern Finland CCEEL. He studies climate policy and law in the land use sector.
Maiju Mähönen works as a project researcher at the University of Eastern Finland. In her research, she has focused especially on the reform of Finland’s climate law and EU climate law.
Kati Kulovesi, Otto Bruun and Maiju Mähönen have provided legal advice and assisted the NGOs in preparing the Finnish climate case.
Photo by Wolfgang Hasselmann on Unsplash
[1] In December 2022 the European Commission, Council and Parliament agreed on a draft compromise text of the revised Regulation: https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2021/0201(COD)&l=en