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Carbon sinks in court- the new trend in climate litigation that came to stay

To combat global warming, it is crucial to reduce greenhouse gas emissions while enhancing carbon removal efforts. It is also imperative for governments to support the aforementioned equation with their laws- and adhere to them. While climate-related lawsuits are not a novel phenomenon, NGOs are now specifically targeting the role of the land carbon sink and the lack of action by Member State governments to safeguard forests and their capacity to mitigate climate change. Two new lawsuits have been initiated lately on this matter, in Finland and Germany.

What are carbon sinks?

Simply put, a carbon sink is anything that absorbs more carbon from the atmosphere than it releases – for example, forests, the ocean, and soil. It is the opposite concept of a carbon source, namely anything that releases more carbon dioxide than it absorbs, such as burning fossil fuels.

The amount of carbon on Earth has never changed but where carbon is located is constantly changing – it flows between the atmosphere and organisms on Earth as it’s released or absorbed. This is known as the carbon cycle- a process that has maintained a state of equilibrium for years. However, human activities keep disrupting this balance by causing an excessive release of carbon into the atmosphere, which the Earth's natural carbon sinks are unable to adequately absorb. The massive use of fossil fuels for energy generation is the primary contributor to this anomaly, leading to the emission of billions of tonnes of carbon dioxide into the atmosphere annually. Hence, the significance of carbon sinks in regulating the carbon cycle has become more critical than ever.

Fun Fact: Forests around the globe absorb 2.6bn tons of carbon dioxide every year. Despite their essential contribution, a forest area the size of a football pitch is destroyed every second!

The Finnish case

In November 2022, two environmental organizations, Greenpeace and the Finnish Association for Nature Conservation, filed Finland's first ever climate case. They claim that the Finnish Government has failed to meet its obligations under the 2022 Climate Change Act, which mandates Finland to become carbon-neutral by 2035. The applicants assert that the Government has not taken sufficiently strong measures to address the significant decline in Finland's forest carbon sink, putting the fruition of the country's carbon neutrality target on the line.

Forest logging has intensified in Finland in recent years, with over 60% of Finnish forests being privately owned by around half a million forest owners who decide whether to cut their trees based on demand for wood pulp and biomass. In 2021, felling reached a record high of 76.3 million cubic meters of stemwood, resulting in significant growth for the forest industry, while forest growth decreased by 4.3 million cubic meters on a yearly basis. The Finnish Climate Change Panel has described this situation as "very serious," urging the Finnish Government to take urgent measures to remedy the collapse in the forest carbon sink. The necessity of prompt action becomes even more eminent when considering the statements of the Finnish minister of agriculture and forestry Antti Kurvinen, claiming that 'Forest loggings can definitely be increased'. Failure to act would prevent Finland from achieving carbon neutrality by 2035 and put it at risk of non-compliance with the EU's Land Use and Forestry Regulation 2018/841.

Data illustration provided by the Finnish Association for Nature Conservation during the webinar ‘Taking inaction on carbon sinks to court’ (17/2/23)

The applicants argue that the Finnish Government has breached the Climate Change Act (Act) by failing to properly assess the need for additional measures to achieve carbon neutrality and make a decision on adopting such regulatory initiatives. Although the Act does not specify the removals required to achieve carbon neutrality, the LULUCF Sector Climate Plan assumes that the LULUCF (Land Use, Land Use Change and Forestry) sector remains a carbon sink of 21 million tons of carbon dioxide equivalent. Presently, according to according to the Center for Climate Change, Energy and Environmental Law, Finland's forest carbon sink gap stands at nearly 22 million tons of carbon dioxide equivalent, highlighting the need for new measures. Article 16.1 of the Act requires the Government to "sufficiently" monitor progress towards achieving the Act's targets and take additional measures "as necessary." The applicants assert that the Government's measures adopted in July 2022 fail to meet this requirement and that the climate impacts of these measures have not been assessed.

Finally, the applicants contend that the Government has breached the Act by failing to launch a climate plan revision process, as required by Article 17. The revision process provides an opportunity for the Government to study policy options and their climate impacts while consulting stakeholders, giving the public and expert bodies a chance to provide input on additional measures' scale and design.

Photo of deforested land in Finland with the tagline ‘Luontokato’ (nature’s canopy) provided by the Finnish Association for Nature Conservation during the webinar ‘Taking inaction on carbon sinks to court’ (17/2/23)

Moving forward, the environmental organizations' appeal will be considered by the Supreme Administrative Court by May 2023 as the first of its kind under the new law and targets. The organizations consider it essential to get a court ruling on whether the law's mechanism of monitoring, reporting, and corrective action works as intended. This case highlights the crucial role of governments in meeting climate change targets and the need for timely and appropriate measures to address the declining carbon sink.

The German Case

Environmental Action Germany (DUH) has filed a lawsuit against the German Federal Government for its ineffective measures in climate protection within the agricultural and forestry sectors. The organization demands a comprehensive climate protection program that aligns with the targets set for the LULUCF sector, which is meant to play a cardinal role in achieving greenhouse gas neutrality in Germany by 2045.

Projection of Germany‘s LULUCF sector‘s GHG-balance provided by DUH during the webinar Taking inaction on carbon sinks to court (17/2/23). One of the NGO's pretensions was, amongst others, wider access to better-quality, up-to-date data regarding projections and LULUCF targets

Dr. Caroline Douhaire, the lawyer of the NGO claims: "In its climate decision in April 2021, the German Federal Constitutional Court rendered clear that the state is obligated by the German Constitution to achieve greenhouse gas neutrality and to uphold the 1.5 °C temperature target of the Paris Agreement. Based on current knowledge, these goals cannot be achieved without a significant improvement of the greenhouse gas balance in the LULUCF sector. Therefore, binding targets for this sector have been set in the Climate Change Act and by the EU. Unfortunately, according to the available forecasts, Germany is not only far away from reaching the LULUCF targets, but even moves away from them. The German government therefore has to take urgent action to still be able to meet its climate protection commitments."

Coordinating nature and climate protection while considering social and economic concerns and making less intensive use of agricultural and forestry land pose significant challenges. Despite this, DUH argues that the consistent promotion of organic farming and expansion of incentive programs for biodiversity conservation in forestry are viable solutions, which should also consider rural development.

"With our lawsuit, we are calling on the German government to fulfill its constitutional responsibility and create more climate-friendly agriculture. In order to avoid emissions from the drainage of peat soils, a structural change in agriculture is necessary - comparable to the coal phase-out. In addition, ecosystems need to be significantly strengthened in order to maintain their vital functions. Only if ecosystems are adapted to global warming they will continue to bind and store greenhouse gases. All of this takes time. Time is in short supply in view of the enormous damage to forests and the rapid progress of the climate crisis. That's why the German government needs to take effective action as soon as possible!" states the CEO of DUH Sascha Müller-Kraenner.

Litigation in support of climate action is gaining more ground across the EU, with some Member States' courts delivering landmark judgments that require governments and parliaments to adopt more ambitious climate change measures. – e.g., Urgenda Foundation v The Netherlands. Notably, the Finnish and German climate cases are part of a new wave of lawsuits that focus on the implementation of climate targets already established in national legislation. This type of climate litigation is seemingly less ‘aggressive’ and politically controversial, as it is simply asking courts to ensure compliance with the law and that public authorities are taking the measures required by legislation, without raising questions of judicial activism and separation of powers. Environmental NGOs initiating such legal proceedings are, therefore, ‘in the right place in the right time’ since, by doing so, they can play a crucial role in holding governments accountable for their promises, informing the public, raising awareness, and mobilizing public opinion on such ‘less widely known’ environmental issues like the protection of natural carbon sinks.

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