Building towards a just transition: climate litigation and energy efficiency in buildings

Building towards a just transition: climate litigation and energy efficiency in buildings

The link between buildings, emissions, and social justice

When we talk about greenhouse gas emissions, images of smoke-billowing factories may come to mind – but sometimes the source of emissions is somewhat closer to home. The buildings sector accounts for as much as 37% of global GHG emissions, with residential buildings responsible for more than half of this total. This makes energy efficiency in homes a crucial area for climate action.

Key to this challenge is improving energy efficiency, and beyond just reducing emissions, this can also improve quality of life and achieve social justice. Inefficient homes lead to higher energy bills and significant adverse health effects, which disproportionately affects vulnerable groups, particularly lowincome families, the elderly, and people of colour.

This means that the issue of energy efficiency in homes is inextricably linked to various human rights, including the right to life, health, an adequate standard of living, freedom from discrimination, and a healthy environment.

Despite all this, the buildings sector remains an underdeveloped area in climate change litigation. However, litigious actions in the sector are on the rise, and there is a growing recognition of the significant role that energy efficiency measures will play in reducing emissions. These cases fall into four main categories; framework challenges, local-central government disputes, product efficiency standards and human rights.

Framework challenges

Several cases brought in the past few years challenge inadequate climate change measures adopted by governments. Such cases tend to be broad in scope, challenging overall government policy in response to climate change on an economy-wide basis (referred to as ‘framework litigation’). However, a number of those cases refer to the buildings sector, and energy efficiency in buildings, as part of their arguments. While the courts have to date generally stopped short of making sector-specific orders, certain claims have been successful in requiring headline action across all sectors.

For example, Notre Affaire à Tous v. France involved nonprofit organisations compelling the French government to take stronger action to meet its climate goals, calling for improved energy efficiency in buildings among other sector-specific pleadings. The Paris Administrative Court ordered the government to offset its excess GHG emissions by 2022.

In R (Packham) v Secretary of State for Energy Security and Net Zero and Secretary of State for Transport, the UK government’s Net Zero policy is currently being scrutinised. One of the grounds of this ongoing challenge is that, in changing its approach to net zero, the government failed to take into account ongoing consultations about off-grid heating and minimum energy efficiency in rental properties.

Central vs. local government regulations

Often, central governments set baseline standards for energy efficiency. However, local governments tend to have a better understanding of the unique needs and challenges of their communities, and may wish to adopt more ambitious energy efficiency policies to meet their climate and social justice commitments. Litigation can occur when central government policy is at odds with local government ambition.

For example, in (R (Rights, Community, Action) v Secretary of State for Levelling Up, Housing And Communities), civil society organisation Rights, Community, Action successfully challenged the decision by a UK planning inspector to reject West Oxfordshire District Council’s plan for a new housing development with particularly high net-zero standards, including ambitious energy efficiency measures.

In the USA, a group of cases has emerged surrounding the federal Energy Policy and Conservation Act (EPCA) and whether it preempts (i.e., displaces) higher local standards in certain cases.

In California Restaurant Association v. City of Berkeley, the United States Court of Appeals for the Ninth Circuit found that the EPCA preempted the City of Berkeley’s ban on natural gas piping in new construction. The Court subsequently declined to re-hear this matter, despite the City of Berkeley’s petition for rehearing being supported by 8 Amicus Briefs from various cities, states, NGOs and other organisations.

Although this action was brought by a restaurant industry group, the decision had significant implications for the buildings sector as a whole, particularly because the Court of Appeals’ decisions are binding on all district courts within the Ninth Circuit. Indeed, following the Berkeley decision, Washington State Building Code Council adopted a revised version of amendments of the State Energy Code, restricting the use of natural gas appliances in commercial and residential buildings. A challenge to the revised amendments was promptly brought by industry representatives and residents (Northwest Regional Council of National Construction v. State Building Code Council). A hearing on the merits will take place later this year.

The cases demonstrate the challenges that local authority climate action can encounter, not only from central government but from other stakeholders as well. The interplay between central and local government policy has become a key area for litigation which seeks to advance bolder climate action, but also for ‘counter-climate litigation’. This is particularly important in the buildings sector, since local authorities may have significant powers and duties associated with planning laws and regulations, protecting wildlife and heritage, preventing hazards in housing, and enforcement of building regulations.

Product efficiency standards

Several cases have been initiated in the USA focusing on the energy efficiency of specific household appliances.

For example, in New York v. U.S. Department of Energy and Natural Resources Defense Council v. U.S. Department of Energy, 15 states, New York City, the District of Columbia, and several organisations challenged the Department of Energy's withdrawal of expanded light bulb energy conservation standards. The motions were subsequently paused due to the Department of Energy’s intention to review the withdrawal, which ultimately resulted in the initial expansive rule being reinstated. Similarly, in Natural Resources Defense Council, Inc. v. Perry, several states, New York City, and environmental groups successfully challenged the Department of Energy's decision to delay energy conservation standards for various appliances.

These cases demonstrate the salience of product-specific energy efficiency measures in working towards reducing GHG emissions, and the pivotal role of federal energy standards in state and national environmental strategies in the USA. As state and environmental groups continue to challenge federal standards perceived as not ambitious enough, we expect the courts will continue to be an important forum for interested groups seeking to uphold GHG reduction policies.

Human rights and just transition

Human rights and just transition litigation represents a potential future growth area for the buildings sector. The link between the energy efficiency of buildings and just transition is starting to be recognised in climate change litigation.

In R (Friends of the Earth, ClientEarth, Good Law Project) v Secretary of State for Business, Energy and Industrial Strategy, the UK’s Net Zero Strategy and the Heat and Building Strategy were challenged. Among other arguments, it was submitted that the UK government failed to consider the impact of the Heat and Buildings Strategy on vulnerable groups – which the High

Court accepted. The government subsequently undertook an equality impact assessment of the Heat and Buildings Strategy, acknowledging that not actioning buildings decarbonisation policies would likely cause negative impacts, and committing to monitoring and adjusting the strategy, as appropriate, considering the latest evidence to advance equality.

In Verein KlimaSeniorinnen Schweiz and others v. Switzerland, the European Court of Human Rights (ECtHR) found that the right to respect for private and family life (Article 8(1) of the European Convention of Human Rights) includes a right to effective protection by the state from the serious adverse effects of the climate crisis on lives, health, wellbeing and quality of life.

Whilst not expressly addressing the buildings sector, this groundbreaking recent judgment is expected to have farreaching implications for the development of climate change litigation as a whole. It cements the link between human rights and climate change law – a precedent which we expect will now be followed by national courts in the Member States of the Council of Europe, potentially affecting the pending framework challenges to government climate change policies (outlined above), as well as opening potential new avenues for climate litigants. At the ECtHR itself, there are currently several other climate change applications which have been adjourned until the KlimaSeniorinnen judgment, and which will now proceed to be examined.

The future of climate litigation

Energy efficiency in buildings is not just about mitigating the climate crisis; it is also an important consideration in adapting to the impacts of climate change. Proper insulation can keep homes warm in winter and cool in summer, reducing energy costs and improving health outcomes.

Climate change adaptation was a significant aspect of the KlimaSeniorinnen judgment, and the subject of a recentlybrought challenge to the UK government. As extreme weather events become more frequent, the role of energy efficiency in climate adaptation is likely to grow, potentially leading to more litigation in this area.

As the landscape of climate litigation evolves, we can expect to see more cases targeting energy efficiency measures, highlighting their importance in both mitigation and adaptation strategies. Public and private sector stakeholders alike must recognise the increasing legal risks and opportunities associated with this critical issue. 

Dominika Leitane

Legal Officer at Opportunity Green

an environmental NGO that uses legal, economic and policy knowledge to tackle climate change.

For more information, read Opportunity Green’s full briefing, Building towards a just transition: Energy efficiency in residential buildings as an area of strategic climate litigation.