The Finnish Supreme Administrative Court: Government Inaction in Combatting Climate Change May Lead to Court Proceedings

Authors: Aapo Heinäsmäki, Anna-Maria Tamminen, and Johanna Vanninen

Summary

On 7 June 2023, the Supreme Administrative Court of Finland issued its ruling in Finland’s first domestic climate litigation case. The case was initiated by two environmental NGOs as a complaint against the Finnish Government on the basis of the lack of measures regarding Finland’s carbon sinks in the Annual Climate Report submitted by the Government. While the Supreme Administrative Court ultimately found - in a 3-2 split verdict - that in these circumstances there had been no appealable decision and thus it could not rule on the substance of the complaint, the ruling nevertheless clarifies that should government passivity in combatting climate change continue, the Supreme Administrative Court could be able to rule on the substance of a similar future complaint.

Background of the Case

In May 2022, the Statistics Finland published a report in which, for the first time ever, the Finnish land use sector had turned from a net carbon sink into a net carbon emitter. Considering that Finland’s law-inscribed goal of carbon neutrality by the year 2035 relies on the assumption that the land use sector remains a net carbon sink, its change into an emitter might plausibly cause considerable challenges to the carbon neutrality goal.

In July 2022, the Finnish Parliament passed a new Climate Act, which provides that the Government shall monitor the implementation of climate policy plans and, if necessary, decide on additional measures required to achieve the targets. Furthermore, the Climate Act provides that the Government shall submit an Annual Climate Report, in which it, among other things, reports on the need for additional measures required to achieve the goals.

On 27 October 2022, the Government issued an Annual Climate Report to the Parliament, in which the change in the land use sector’s carbon sink / emitter status was noted. However, the Government did not report on any additional measures planned or undertaken due to this change.

The NGOs alleged that the lack of additional measures concerning the land use sector’s change into a net carbon emitter constituted a breach of the Government’s obligations under the Climate Act and appealed to the Supreme Administrative Court. The NGOs demanded that the Government’s decision regarding the issuance of the Annual Climate Report be set aside, and the matter be returned to the Government for reconsideration.

The Findings of the Supreme Administrative Court

The Supreme Administrative Court investigated whether the Government had made an appealable decision either 1) when it submitted the Annual Climate Report to the Parliament, or 2) when, in connection with the Annual Climate Report, it did not decide on additional measures concerning carbon sinks.

On the first question, the Supreme Administrative Court found that the submittance of an Annual Climate Report would not constitute an appealable decision, as it was part of the political procedure and of correspondence between the Parliament and the Government.

The findings made on the second question, however, merit a closer inspection. The Supreme Administrative Court noted that as a starting point the passivity of officials – in this case the Government not deciding on additional measures regarding carbon sinks - does not constitute an appealable decision. The Supreme Administrative Court nevertheless stated that combatting climate change, which is key for the future of entire humanity, might necessitate the granting of a right to appeal even in situations where no formal appealable decision has been made.

Ultimately, the Supreme Administrative Court found that in these circumstances, the Government’s non-decision on additional measures did not constitute an appealable decision. This was because the Government had only had a limited amount of time between the passing of the Climate Act and the submittance of the Annual Climate Report, and furthermore, because the Government had shown that it had begun preparing additional measures regarding the carbon sinks.

Therefore, the Supreme Administrative Court found that there had been no appealable decision in the case, and therefore it could not rule on the substantive request of the NGOs.

As a side note, it is worth noting that this appears to be the first ruling of a court of highest instance in Finland where the threat caused by climate change is so unambiguously put into words: “In light of the best scientific evidence, climate change is a question of humanity’s destiny, which threatens the vital conditions of life on Earth for current and future generations, unless prompt and effective measures to limit emissions and preserving and increasing carbon sinks are undertaken.”

The Significance of the Ruling and What Comes Next?

Although the Supreme Administrative Court did not grant the relief requested by the NGOs, it also did not reject the legal construction they put forward: Government passivity in combatting climate change may lead to the Supreme Administrative Court ruling on the legality of such government (in)action.

In essence, the Supreme Administrative Court’s ruling keeps the door open for more climate litigation cases to be initiated against the Finnish Government should its measures to combat climate change be insufficient. Much like in our previous blog post concerning ESG litigation, we expect more such cases to be brough by NGOs, especially now that the existential threat of climate change has been confirmed by a court of the highest instance in Finland. As a key feature of climate litigation is seeking novel approaches to tackle a global issue, it is likely that new legal avenues, built on the findings of this case, will be explored in future climate litigation cases.

Furthermore, the timescale of this case alone shows how fast the field of climate litigation is currently evolving: In late November 2022, the NGOs set out with a first ever domestic climate litigation case in Finland and in just over half a year, the Supreme Administrative Court of Finland has stated that Government inaction in combatting climate change may lead to court proceedings.

While this ruling took place in administrative proceedings, it might nevertheless have significance also in climate litigation initiated against companies now that the Finnish Supreme Administrative Court has confirmed the threat of climate change as a matter of law. More on such climate litigation cases can be read from our previous blog post.