Author: Corina Heri

Associate professor, HYDR/Faculty of Law and Criminology, Vrije Universiteit Brussel (VUB)

Categories
Business responsibility / corporate cases Class action Domestic court Emissions reductions/mitigation European Convention on Human Rights Fossil fuel extraction Imminent risk Paris Agreement Private and family life Right to life The Netherlands

Milieudefensie et al. v. Shell Plc (No. 2)

Summary:
On 21 April 2026, the Dutch NGO Milieudefensie delivered summons to oil and gas giant Shell Plc, in its second collective legal action against the company following the first Milieudefensie case (decided on appeal in 2024). This second case, under Section 3:305a of the Dutch Civil Code (DCC), is brought on behalf of current and future generations of Dutch citizens after the corporate actor moved its seat from the Netherlands to the United Kingdom. Milieudefensie summoned Shell to appear at a hearing to be held at the District Court of Amsterdam on 29 July 2026.

In its 273-page summons, Milieudefensie covers issues of jurisdiction, the requirements for a collective suit under Section 3:305a DCC, the scientific evidence underpinning its case, the risk of reaching climate tipping points for Europe and for the Netherlands, international climate policy and the global 1.5-degree temperature target, the important role played by non-state actors and their corporate responsibilities to respect human rights, the inhibiting influence of the oil and gas industry, including Shell, on infrastructural carbon lock-ins, including through its historical undermining of climate science and strategies to delay climate action, as well as its lobbying against the EU’s Corporate Sustainability Due Diligence Directive (CSDDD or CS3D) of 13 June 2024.

Milieudefensie sets out the framework for assessing Shell’s responsibility under Sections 3:296 and 6:162 DCC, fleshing this out by invoking the societal duty of care under domestic law, as well as the doctrine of hazardous negligence, human rights law (particularly Articles 2 and 8 ECHR, the rights to life and respect for private and family life), international customary law, international soft law, and legal principles including the precautionary principle, the climate law principle of Common but Differentiated Responsibilities (CBDR), and the principle of intergenerational justice. In particular, the summons argues that

“[s]ince the Urgenda judgment, it has been widely recognised in court judgments that dangerous climate change leads to human rights violations. Not only the ECHR, but also the IACtHR and the ICJ have recently found this. Numerous (supreme) national courts have independently reached the same conclusion. Within Europe, for example, reference can be made to the case law of the [German] Bundesverfassungsgericht and the Court of Appeal in Brussels. Outside Europe, the situation is no different. For example, the Lahore High Court in Pakistan, the Supreme Court of Colombia, the Brazilian Federal Supreme Court, the District Court of Montana (United States) and the Supreme Court of India have all ruled that human rights can be relied on in order to be protected against the effects of climate change. In view of the above, there can be no misunderstanding that human rights (indirectly) have a horizontal effect when the unwritten duty-of-care standard is fleshed out. Nor can there be any debate about the fact that dangerous climate change leads to human rights violations and that human rights can be relied on for protection against dangerous climate change. The only question that remains is what assessment framework needs to be applied here. “

Milieudefensie argues that Shell bears a share of the responsibility to prevent dangerous climate change, discussing its level of knowledge and the foreseeability of harm by arguing that Shell has long known about the fact that fossil fuels cause climate change, with serious consequences for people and the environment, has known that it is making a substantial contribution to climate change and that it needs to take (precautionary) measures. It sets out Shell’s two-pillared obligations: first, a reduction obligation for Scope 1, 2 and 3 CO2 emissions, and second, an obligation not to develop new oil and gas fields.

Concerning the first pillar of obligations, Milieudefensie argues that “Shell must make an equitable contribution (a “fair share”) to preventing dangerous climate change and limiting global warming to 1.5°C by reducing its emissions.” In doing so, it invokes UN reports to argue that:

  • companies must demonstrate maximum ambition to achieve (net) zero CO2 emissions as quickly as possible, but by 2050 at the latest;
  • companies must set ambitious and credible interim targets for the short and medium term on the road to the above-mentioned goal of net zero CO2 emissions that represent a fair share of the global reduction target; and
  • the (interim) targets should cover all Scope 1, 2 and 3 emissions and should aim for absolute CO2 emission reductions.  

    It also submits that “Shell can be considered to be an influential Western company in several respects; it has both substantial emissions and large transition capabilities and a large historical responsibility. These are all relevant circumstances under the above-mentioned climate protocols (as evidenced by e.g. the reference to the CBDR principle and the need to take on a fair share of the global target) for asking Shell to take on an above-average responsibility and requiring it to reduce its emissions faster than the global average.”

    As concerns the second pillar of obligations, Milieudefensie argues that Shell’s obligation not to pursue new fossil fuel projects is “based on the doctrine of hazardous negligence, human rights law, the legal principles discussed, soft law and other objective points of reference, is that Shell must cease the development and production of new oil and gas fields. After all, the carbon budget with a 50% probability of 1.5°C is already exceeded with the operation of the existing fossil-fuel infrastructure alone, and new oil and gas fields are therefore incompatible with the goal of limiting global warming to 1.5°C by the end of this century. “

    Milieudefensie concludes that Shell is breaching its societal duty of care under domestic law, and seeks the following provisionally enforceable remedies:

    • Emissions reductions, covering annual Scope 1, 2 and 3 emissions, as per the table below;
    • A prohibition of achieving these reductions through divestment, i.e. through transfer of shares or assets;
    • To prohibit Shell from making use of carbon credits for the purpose of achieving the emission reductions described;
    • To order Shell to achieve that the Shell Group ceases, continues to cease and does not start the production of new oil and gas from fields.

    More information:
    The full text of the summons (translated into English by Milieudefensie) is available below. For more information on the case, see here.

    Summons Milieudefensie v. Shell (No. 2)Download

    Suggested citation:
    District Court of Amsterdam, Milieudefensie et al. v. Shell Plc (No. 2), summons issued 21 April 2026.

    Categories
    Children and young people Domestic court Emissions reductions/mitigation Farming Japan Paris Agreement Right to a healthy environment Right to health Right to life Right to property Right to pursue happiness

    Call4 et al. v. Japan

    Summary:
    On 18 December 2025 and 4 April 2026, two lawsuits were filed in Japan against the Japanese government’s inaction on climate change. The first suit was filed with the Tokyo District Court on behalf of 452 plaintiffs from all over Japan, including victims of heatstroke, individuals who work in primary industries such as agriculture and fisheries, and children. The second suit, again with the Tokyo District Court, was filed on behalf of 454 additional plaintiffs.

    The (in total) 906 plaintiffs in these twin cases summarize their claims as follows:

    First, they challenge the legality of the government’s emissions reductions targets, given their inconsistency with the 1.5-degree warming target set out by the Paris Agreement. They challenge the reduction targets set out in the most recent Japanese NDC and the country’s 7th Global Warming Countermeasures Plan, both dated February 2025. Under these instruments, the government’s current targets aim for a 39% emissions reduction by 2030, a 52% reduction by 2035, and a 67% reduction by 2040 compared to 2019 levels, which the plaintiffs argue is incompatible with IPCC science, the 1.5-degree target, and Japan’s obligations as a highly developed nation.

    Second, the plaintiffs argue that the government’s failure to enact effective legislation to achieve the 1.5-degree target is unconstitutional. They submit that “currently in Japan, there are no laws that set greenhouse gas reduction targets for 2030 or 2035, nor are there any legally binding emission standards.” They argue that “[t]he right to live peacefully in a stable climate without fear of harm to one’s life, health, or property is a human right that should be guaranteed by the Constitution”, as well as invoking the constitutionally guaranteed right to live peacefully.

    In doing so, the plaintiffs draw on IPCC reports and explicitly refer to climate litigation in domestic and international jurisdictions, including the ICJ’s climate advisory opinion.

    More information:
    More information on the case, as well as case documents, are available here.

    The applicants’ submissions in both cases (in Japanese) are available for download below.

    Filing in the first caseDownload
    Filing in the second caseDownload

    Suggested citation:
    Tokyo District Court, Call4 et al. v. Japan, filings of 18 December 2025 and 4 April 2026 (pending).

    Categories
    2026 Children and young people Domestic court Emissions reductions/mitigation Fossil fuel extraction Indigenous peoples rights Indigenous peoples' rights Public trust doctrine Right to a healthy environment Right to culture Right to life Separation of powers United States of America

    Kaarina Dunn et al. v. Public Service Comission of Wisconsin, et al.

    Summary:
    On 23 April 2026, a court in the US state of Wisconsin ruled in a youth climate case against the Wisconsin Public Service Commission and the Wisconsin State legislature. The case was filed by fifteen young people ranging in age from 8-17. The youth plaintiffs had challenged the constitutionality of statues governing the approval of fossil fuel-fired power plants because those statutes limit the ability of the first respondent, the Public Service Commission of Wisconsin, to consider air quality impacts of when issuing permits for such plants. In doing so, they had invoked their rights, under the Wisconsin state constitution, to liberty and to life, as well as the rights to a stable climate system and to access, enjoy and use navigable waters (both of which they considered inherent within the constitution). They also alleged a violation of Wisconsin’s public trust doctrine.

    According to the Plaintiffs, climate change has rendered them unable to enjoy Wisconsin’s natural resources, like its rivers and lakes, as well as prevented them from engaging in recreational activities, like swimming and skiing. Some are deprived of their Indigenous cultural traditions, while others have experienced asthma and contracted Lyme disease.

    The judge tasked with resolving this case, Judge Julie Genovese, ruled that “[w]hile the court is sympathetic to the youths and admires their willingness to access the courts in their quest to protect the planet, I conclude that the case must be dismissed because environmental policy is a nonjusticiable political question”. The judge discussed Wisconsin’s political question doctrine, which “dictates that courts will not decide questions that require the court to determine what the best or wisest public policy would be”, and “also embodies a practical component, recognizing that matters of economic and social policy are not reasonably “susceptible to judicial management or resolution.””

    The judge concluded that:

    “by substituting this court’s judgment for the legislature, the court
    would be showing a lack of respect for the legislative and executive branches. Plaintiffs do not like these policy decisions. (…) Because Plaintiffs think it is technologically and economically feasible for Wisconsin to be carbon free by 2050, they conclude that by invalidating the statutes and thus their limitations, the PSC will decide to stop approving fossil fuel-fired plants, and Plaintiffs’ carbon free goal will be achieved. While the court may agree with Plaintiffs’ policy preferences, it would show a blatant lack of respect for our elected officials and the agency defendants to substitute my judgment for theirs, and strike the limitations imposed by the legislature and executed by the PSC. Accordingly, because the court concludes that the legislature’s policy decisions represent a nonjusticiable political question, this case must be dismissed.”

    Full text of the judgment:
    The full text of the judgment is available for download below.

    Decision Wisconsin 2026Download

    Submission on behalf of the state:
    The submission made on behalf of the state government can be downloaded below.

    Filing Legislature’s attorney Ryan WalshDownload
    Categories
    Deforestation New Zealand Participation rights Participation rights

    ELI and Lawyers for Climate Action NZ v. Minister of Climate Change

    Summary:
    On 10 June 2025, a climate case was filed in the Wellington High Court in Aotearoa New Zealand by the organizations Lawyers for Climate Action NZ and the Environmental Law Initiative (ELI). The case challenges decisions relating to the country’s first (2021-2025) and second emissions reduction plans (2026-2030), including the second plan’s offsetting-led approach, which prioritizes reforestation measures over emissions reductions.

    Regarding the first emissions reductions plan, the plaintiffs challenge the ex post cancellation of various projects and actions set out in that plan by the current Government. They argue that domestic legislation, and particularly the Climate Change Response Act, “imposes guardrails on government’s ability to change and cancel climate policies on the fly.” They also challenge the absence of adequate public consultation concerning the changes.

    Regarding the second emissions reductions plan, they allege that the Minister of Climate Change is under a legal duty to ensure that emissions budgets are met, which in turn requires the preparation and publication of emissions reductions plans setting out policies and strategies for meeting the emissions budget. The second emissions reduction plan has a wide uncertainty margin, and projects that New Zealand won’t achieve its 2035 target, meaning that according to the plaintiffs it is inadequate, unlawful and too limited in its modeling, as well as taking “an unrealistic and inadequate approach to risk management, relying on a ‘wait and see’ approach it calls ‘Adaptive Management'”. The plaintiffs further challenge the offsetting-led approach of the second emissions reductions plan, and more specifically the decision to prioritize reforestation measures over emissions reductions. They argue that this plan “proceeds on a fundamental error of fact – that forestry offsets and reductions are fungible, when that’s not the case”, and that it does not suffice to comply with the country’s obligations under the Paris Agreement. 

    Suggested citation:
    Wellington High Court, ELI and Lawyers for Climate Action NZ v. Minister of Climate Change, filed 10 June 2025 (pending).

    Further information:
    More information is available on ELI’s dedicated website.

    The statement of claim is available for download below.

    2025-06-10+ERP2+Statement+of+claimDownload

    Last updated:
    13 March 2026.

    • Tags
    Categories
    Uncategorized

    Klimatická žaloba ČR et al. v. Czechia

    Summary:

    On 2 February 2026, the Czech NGO Klimatická žaloba ČR submitted an application to the European Court of Human Rights (ECtHR) alleging violations of Articles 8, 6 and 13 of the European Convention on Human Rights (ECHR) by the Czech government in light of its climate mitigation policy.  The application follows up on domestic proceedings in the Klimatická žaloba ČR, z.s. and Others v. Ministry of the Environment, Ministry of Industry and Trade, Ministry of Agriculture, and Ministry of Transport, Czech Republic case, which was dismissed by the Czech Constitutional Court in 2025, and draws on the ECtHR’s earlier KlimaSeniorinnen judgment.

    The applicants argue that Czechia has failed to create a fair 1.5°C national carbon budget, has not adopted a net zero commitment, and has not established binding climate mitigation targets or measures or interim targets to that effect. They accordingly allege violations of Article 8 ECHR, the right to respect for private and family life, as well as the right to a fair trial (Article 6 ECHR) and the right to an effective remedy (Article 13 ECHR), alleging the absence of effective judicial review.

    The contested domestic legal framework:

    In their application, the applicants argue that the current legal framework, as enshrine din the 2017 Climate Protection Policy:

    “[E]nvisages reducing emissions to approximately 102.3 Mt CO₂eq by 2030 (a 48% reduction compared to 1990) and even 39 Mt CO₂eq by 2050. An evaluation carried out by the Ministry of the Environment in 2021 concluded that these targets are insufficient and do not even correspond to the EU’s climate targets at that time.
    The draft update to the Czech Republic’s Climate Protection Policy, submitted to the government on July 17, 2024, was not adopted. In its Resolution No. 960 of December 18, 2024, the government even revoked the Minister of the Environment’s mandate to submit this update. In October 2025, the update was approved only as a non-binding departmental strategy of the Ministry of the Environment. Even this departmental strategy does not contain a commitment to achieve climate neutrality, only an ambition to “move towards” climate neutrality, which is also conditional on favorable socio-economic developments. The departmental strategy does not contain a target for 2040 and sets a target of reducing emissions by only 55% by 2030, although the underlying modeling showed the possibility of a reduction of up to 68%. The Czech Republic does not have climate targets enshrined in law – the current Climate Protection Policy (2017) is only a government resolution without legal binding force. The Czech Republic does not have a framework climate law, has not set a binding national carbon budget, has not set interim emission reduction targets, nor has it set a target year for achieving climate neutrality.” (translation from the original Czech by ClimateRightsDatabase).

    The application to the ECtHR, as shared by the applicants, is available for download below.

    Cover_letter-mergedDownload

    Suggested citation:
    ECtHR, Klimatická žaloba ČR et al. v. Czechia, application submitted on 2 February 2026 (not yet communicated).

    Last updated:
    12 March 2026.

    Categories
    European Court of Human Rights Uncategorized

    Fliegenschnee and Others v. Austria

    Summary:
    Fliegenschnee and Others v. Austria concerns an application to the European Court of Human Rights (ECtHR) by three Austrian nationals (Peter Fliegenschnee, Klara Kornelia Butz and Monika Jasansksy) and the environmental organisation Global 2000. After the Austrian authorities refused to issue a phased ban on the sale of fossil fuels from 2025 (2040 for aviation), which the applicants had requested under the Austrian Trade Act to mitigate the effects of climate change, the applicants turned to the ECtHR. They argued that the State’s inaction leaves them exposed to increasingly severe climate impacts such as heatwaves, drought, and environmental degradation. The association applicant, recognised under Austrian law as an environmental organisation, also asserted that it represented the interests of the general public, which it claimed were harmed by the State’s failure to act. On 11 December 2025, the ECtHR published a decision declaring the application inadmissible for lack of victim status, standing and substantiation.

    Claim:
    Before the ECtHR, the applicants argued that Austria’s refusal to introduce a fossil-fuel ban violated Article 2 (right to life) and Article 8 (right to respect for private and family life), because climate change poses real and foreseeable risks to their health, safety, and living conditions. They contended that by declining to adopt effective mitigation measures despite having the capacity to do so, the State breached its positive obligations under the Convention. The environmental association added that this refusal also harmed the public interest, which it is entitled to represent, because ineffective climate action endangers society as a whole. One applicant, a farmer, claimed an additional violation of Article 1 of Protocol No. 1 to the ECHR, arguing that drought linked to climate change threatened her crops and thus her right to property.

    Domestic decisions:
    Domestically, the Minister held that the requested fossil-fuel ban fell outside the Minister’s statutory authority and that such sweeping climate-policy decisions must be taken at the legislative or governmental level. The refusal was upheld by domestic courts

    On 25 April 2022 the Vienna Regional Administrative Court upheld the Federal Minister’s decision, confirming that she lacked the competence to order the requested measure and holding that the applicants did not have an individual right to such a measure. On 10 June 2022, the applicants lodged a complaint with the Constitutional Court, which rejected their complaint on 27 June 2023 (E 1517/2022-14), confirming that neither EU law, nor the ECHR, nor Austria’s Trade Act granted the applicants a right to an ordinance banning fossil fuels.

    Decision of the European Court of Human Rights:
    The applicants brought their case to the ECtHR, asserting that Austria’s inaction amounts to a breach of its human-rights obligations under the ECHR. On 11 December 2025, the ECtHR published its unanimous decision in this case, which was taken on 18 November 2025 by the Fourth Section of the Court. The decision declared the case inadmissible on grounds of victim status.

    The Court held, regarding the applicants’ complaints under Articles 2 and 8 ECHR, that there needed to be “a serious, genuine and sufficiently ascertainable threat to life” in order for Article 2 to apply and for individual applicants to meet the especially strict victim status criteria for climate change mitigation cases (KlimaSeniorinnen, § 488). Considering it “questionable” whether Article 2 applied here, the Court examined the case under Article 8 ECHR alone.

    For the individual applicants, the Court noted that they had not provided details about whether and how they had been personally affected, nor evidence to substantiate their alleged health vulnerabilities. They had thus not met the KlimaSeniorinnen victim status test, and their claims were declared inadmissible. The Court did not accept the argument from the 28-year-old second applicant that her health was endangered because of her young age and her thus lengthy exposure to the effects of climate change in the future, nor arguments linked to the first applicant’s heart condition.

    As concerned the fourth applicant, an environmental association incorporated under Austrian law, the Court found that (applying the KlimaSeniorinnen test for representative standing of associations) “in principle, this recognition under Austrian domestic law is sufficient to show that the fourth applicant is lawfully established within that jurisdiction and has standing to act there, and that it pursues a dedicated purpose, based on its statutes, for the protection of the environment”. However, the Court doubted whether it met the final criteria of that test, which require associations who bring representative climate claims to have “a dedicated purpose in the defence of human rights in the context of the protection of the environment” and to represent affected individuals in that jurisdiction. The Court held that this was “unclear as no detailed information on its membership nor its statutes have been submitted”. It left this issue open, however, as the case would have in any case been inadmissible for the following reasons.

    • Article 8 ECHR does not grant a right to the measure sought, namely a ban on the sale of fossil fuels. The Court here considered it “inherent in the principle of subsidiarity and the wide margin of appreciation accorded to States with respect to the choice of means to achieve their climate change goals (…) that Article 8 cannot be read to guarantee a right to a particular mitigation measure by a specific State body under a certain sectoral law of an applicant’s choice” (para. 33).
    • Secondly, the Court considered that the applicants had insufficiently substantiated how Austria had failed to devise an adequate regulatory framework. Despite government admissions that current measures would not allow Austria to comply with its own GHG emissions reduction targets by 2030, the Court considered this argumentation insufficient as a base for its assessment, and noted that no domestic remedies had been used other than requesting a measure from the Federal Ministry. The applicants had also not alleged a lack of appropriate remedies.

    The Court also engaged with the third applicant’s complaints under Article 1 of Protocol No. 1 to the Convention, the right to property. As a farmer, she argued that her property had been endangered because of droughts caused by climate change. Here, the Court noted that “it has so far not applied Article 1 of Protocol No. 1 in the context of climate change and that its applicability does not follow from the current case-law” (para. 37). The Court held that “even if Article 1 of Protocol No. 1 were applicable in the context of climate change”, the third applicant would have lacked victim status.

    Suggested case citation:
    ECtHR, Fliegenschnee and Others v Austria App no 40054/23, decision of 18 November 2025.

    Case documents:

    • The decision of the Court is available here.
    • The Court’s press release (summary) is available here.
    Categories
    2019 Indigenous peoples rights Indigenous peoples' rights Kenya Participation rights

    Amu Power Company Ltd v Save Lamu & Others

    Summary:
    This case concerns a coal-fired power plant project conceived as part of the Kenyan development blueprint: Kenya Vision 2030. The Kenyan government determined that the 1050 MW power plant would be set up in Kwasasi (near Lamu Port). Amu Power Company Ltd. (Amu Power) won the bid for the project. Subsequently on 7 September 2016, the National Environment Management Authority (NEMA) granted Amu Power the requisite license based on the Environmental & Social Impact Assessment study (ESIA) commissioned by the latter. Immediately thereafter, environmental groups and local community representatives challenged the license before the National Environment Tribunal (NET), naming both NEMA and Amu Power as the respondent parties.

    On 26 June 2019, the NET delivered a decision wherein found fundamental deficiencies in public participation and noted the witness for Amu Power’s admission of the failure to consider climate impacts of the project in the ESIA study. It thus found the NEMA to have violated its statutory duty to ensure project’s compliance with the Environmental Management and Coordination Act 2009 read together with the Environmental Impact Assessment & Audit Regulations (EIA Regulations) and therefore cancelled the license.

    Further, it recommended that Amu Power conduct a fresh ESIA study, including consideration of the Climate Change Act 2016 and compliance with all statutory requirements, should it wish to pursue the construction and operation of the project.

    Amu Power challenged this decision by way of an appeal before the High Court of Malindi. On 25 October 2025, the High Court dismissed the appeal and upheld the NET’s 2019 decision ordering a cancellation of the license.

    Claims:
    The objectors contended that the operation of the plant would negatively impact the area’s air quality, contribute to climate change to such an extent that its operation would be contrary to Kenya’s National Climate Change Action Plan and Climate Change Act No. 11 of 2016, as well as Nationally Determined Contribution submitted to the UNFCCC which focuses on renewable energy rather than fossil fuels. Further, they argued the effluent discharge from the plant would impact marine biodiversity, potentially increasing seawater temperature by 9°C, which could infringe upon the rights of Lamu residents dependent on fishing, thus interfering with their their cultural rights and traditional way of life a set out in Article 44 and 43 of the Constitution. These contentions were meant to contextualize the crux of the case brought by the objectors, which concerned administrative failure. The objectors invoked the lack of effective public participation, inadequacies in the ESIA study, especially as it related to the plant’s impacts on human health, mitigation of environmental impacts and the failure to consider impacts on climate change, as grounds for cancellation of the license. 

    Amu Power argued that the project would displace a much higher amount of carbon dioxide than what could be generated by it, as electricity would be available to users at the lowest rates, also alluded to the added benefits revolving around climate change adaptation measures. It noted that the ESIA study sufficiently addresses the impacts of thermal effluents on the marine environment and local air pollution by also considering the appropriate the mitigation measures. Regarding climate change, Amu Power submitted that the Paris Agreement came into force on 4th November 2016 after the ESIA study had been concluded and the licence was issued. Lastly, Amu Power argued that the NET placed undue emphasis on procedural rather than the substance, i.e. the spirit behind public participation; and that in any case the flaws in the process were not significant enough to deprive the public participation process of its efficacy.

    Judgment of the High Court of Malindi:
    In its 2019 judgment, the High Court of Malindi re-affirmed the NET’s findings that the license was issued based on a fundamentally flawed public participation process. The Court emphasized the significance of these findings on the basis of the constitutional significance accorded to public participation. Article 10(1) of the Constitution provides those national values and principles of governance, which includes ‘participation of the people’ bind all State organs, State officers, public officers and all persons when applying or interpreting the Constitution, enacting or interpreting any law, or making or implementing public policy decisions. Article 69(1)(d) requires the State to encourage public participation in the management, protection and conservation of the environment.

    It further added that the findings regarding inadequate public participation are of over-arching significance, in that even if the NET had erred in assessing the ESIA’s consideration of mitigation measures concerning the treatment of effluents and climate change, as unsatisfactory, “the project and the study remain condemned due to insufficient public participation” (para. 179).

    Links:

    • For the full judgment National Environmental Tribunal, see here.
    • For full judgment of the High Court of Malindi on the appeal by Amu Power against the judgment of the National Environmental Tribunal, see here.

    Suggested case citation:
    Environment and Land Court at Malindi, Amu Power Company Ltd v Save Lamu & Others, ELCA No. 6 of 2019, 16 October 2019, Hon. Justice Mwangi Njoroge.

    Last updated:
    30 October 2025.

    • Tags
    Categories
    Access to a remedy Children and young people Children's rights/best interests Emissions reductions/mitigation Fair trial Fossil fuel extraction Human dignity Imminent risk Non-discrimination Private and family life Public trust doctrine Right to a healthy environment Right to culture Right to health Right to property United States of America

    Our Children’s Trust with 15 Juliana Plaintiffs v. The United States of America

    Summary:
    On 23 September 2025, the NGO Our Children’s Trust announced that it had filed a petition before the Inter-American Commission on Human Rights alleging climate-related violations of human rights by the government of the United States of America on behalf of a group of youth. This petition follows the advisory opinion of the Inter-American Court of Human Rights on climate change, which was issued on 29 May 2025, as well as drawing on the climate advisory opinion of the International Court of Justice. The petitioners were formerly plaintiffs in the Juliana proceedings brought before US domestic courts on the basis of the public trust doctrine, among others.

    Before the Inter-American Commission, the petitioners allege that the United States has known for decades that CO2 emissions cause climate change and that a transition away from fossil fuels is needed to protect human rights. They argue that, as the world’s largest emitter, the United States has played a leading role in causing climate change, and that its greenhouse gas emissions — and the resulting climate change — violate the human rights of children and youth, who are disproportionately impacted by its effects.

    They claim before the Commission that the United States has failed to comply with its international obligations to guarantee the petitioners’ human rights, that it has a duty to prevent harm to the global climate system to guarantee those rights, that it brached its obligation to act with due diligence ot guarantee their rights and prevent harm to the climate system, that if violated its obligation to mitigate greenhouse gas emissions,a form of pollution, and that the United States’s deliberate emissions of greenhouse gasses violate the substantive rights of the petitioners as per the American Declaration, including the rights to life and health, the particular protections for children, equality and non-discrimination, the rights to home, property and private and family life, the right to culture, the right to dignity, and the right to a healthy climate.

    They also invoke their procedural rights, namely the rights to access to justice and an effective remedy, alleging that the United States Department of Justice has deployed “extraordinary tactics” to silence the petitioners, and that the domestic courts failed to consider the merits of their claims.

    In their request for relief, the petitioners inter alia request the Commission to:

    • order precautionary measures to prevent further irreparable harm;
    • join the admissibility and merits of the petition, in accordance with Article 37(4) of the Commission’s Rules of Procedure, given the serious and urgent nature of the case and the ongoing violations of Petitioners’ fundamental rights;
    • conduct an on-site country visit, including a visit with the Petitioners, and hold fact-finding hearings;
    • establish violations of Articles I (life), II (equality), V (private and family life), VI (family), VII (special protections for children), IX (inviolability of the home), XI (health), XIII (cultural life), XVIII (access to justice and effective remedies), XXIII (property), and XXIV (prompt and effective remedy) of the American Declaration and the rights to dignity (Preamble) and to a healthy climate; and
    • issue a country report with recommendations to the United States to remedy confirmed violations of international law, taking into account the clarifications of existing law set forth by the IACtHR and the ICJ in their in Advisory Opinions on the Climate Emergency and Human Rights and the Obligations of States in Respect of Climate Change.

    Full text of the petition:

    The full text of the petition can be found below.

    _2025.09.23+Juliana-IACHR+PetitionDownload

    Suggested citation:

    Inter-American Commission on Human Rights, Our Children’s Trust with 15 Juliana Plaintiffs v. The United States of America, petition filed on 23 September 2025.

    • Tags
    Categories
    Business responsibility / corporate cases Emissions reductions/mitigation Indigenous peoples rights Indigenous peoples' rights New Zealand

    Smith v. Fonterra

    Summary:
    This case was brought by Michael John Smith (Ngāpuhi, Ngāti Kahu), who is the climate change spokesperson for a Māori development platform known as the Iwi Chairs’ Forum, and who is also the applicant in the case of Smith v. Attorney-General. In the present case, he brought proceedings against seven high-emitting companies in New Zealand who are involved in agriculture and energy sectors (namely Fonterra Co-Operative Group Ltd , Genesis Energy Ltd, Dairy Holdings Ltd, New Zealand Steel Ltd, Z Energy Ltd, Channel Infrastructure NZ Ltd and BT Mining Ltd.). He claimed that the emissions caused by these corporate actors constituted a public nuisance, acts of negligence, and a breach of a duty to cease contributing to climate change. The New Zealand courts have issued a series of decisions on this case.

    On 6 March 2020, the High Court of New Zealand struck out the first two causes of action (public nuisance and acts of negligence), but allowed the third (reach of a duty to cease contributing to climate change) to proceed.

    After, on 21 October 2021, the Court of Appeal dismissed Mr Smith’s appeal and upheld the cross appeal of the respondents, Mr Smith received leave to appeal to the Supreme Court on 31 March 2022. On 7 February 2024, the Supreme Court unanimously allowed Mr Smith’s appeal, and reinstated his statement of claim, and referred the case back to the High Court to proceed to trial (for more detail on the Supreme Court’s judgment, see below). After a series of procedural decisions, a substantive hearing in the case by the High Court was scheduled for April 2027.

    Current state of the proceedings:
    On 7 February 2024, the Supreme Court of New Zealand reinstated the two dismissed tort causes of action and remanded the case to the lower court (the High Court). It held that the public rights pleaded laid an appropriate foundation for a nuisance claim. It also held that it was premature, at this stage of the proceeding, to conclude that the common law was insufficient to address the tortious aspects of climate change. Determining whether the actions of respondents, seven high-emitting companies in New Zealand, amount to a ‘substantial and unreasonable interference’ to public rights is a fact inquiry to be analyzed according to policy factors and human rights obligations.

    On remand, the interlocutory applications raised noteworthy cost questions. The sixth defendant, BT Mining, sought an order for security for costs and Mr. Smith applied for protected cost orders (PCO). Here, the court has a wide latitude of discretion. It dismisses BT Mining’s request citing, among other considerations, access to justice concerns. Regarding Mr. Smith however, the court relies on the Edwards factors: (1) whether an issue of significant general or public importance is raised; (2) whether the applicant’s stance is seriously arguable; (3) whether the applicant is genuinely impecunious; (4) the position of the respondent, including “any unjust advantage likely to accrue to it absent the order”; and (5) any reasonable alternatives to making the order.

    Reluctant to grant, the court emphasized the exceptional nature of a PCO in these proceedings. Mr. Smith, however, draws on Munkara v Santos NA Barossa Pty Ltd (No 4), an Australian Federal Court decision that ordered nonparty funders, the Environmental Defense Office, to pay costs to Santos, an oil company who defeated claimants’ petition for injunctive relief in the construction of a pipeline, to remind the court of the significant chilling effect of potential costs exposure on charitable funders. The court draws a distinction between a third-party funder and a ‘pure funder’ to reason that it would be highly unlikely for a costs award to be made against one that did not seek to benefit financially from the litigation nor seek to control its course. Unsatisfactory, but absent disclosure of third-party donor(s), the court declines Mr. Smith’s PCO application in its entirety. The decision, however, is without prejudice, leaving the door open to re-application with third-party funder identification.

    Suggested citation:
    Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134.

    Last updated:
    19 September 2025.

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    Pabai Tells: Judicial Signposting for Relief

    By Esther Gabriel, Juris Doctor, Harvard Law School, Visiting Scholar at the CRRP

    Pabai v. Commonwealth of Australia sits as a defining national case within the broader Torres Strait Islander litigation context. It follows two successful judgements. First, Daniel Billy and others v. Australia (Torres Strait Islanders Petition), decided by United Nations Human Rights Committee, established that the Australian government’s climate change inaction was violative of its human rights obligations to the Torres Strait Islanders. In particular, and relevant here, the Committee found that Australia had violated the Torres Strait Islanders’ right to enjoy their unique culture, the Ailan Kastom, under Article 27. Declaring that, “in the case of indigenous peoples, the enjoyment of culture may relate to a way of life which is closely associated with territory and the use of its resources…[t]hus, the protection of this right is directed towards ensuring the survival and continued development  of cultural identity,” the Committee required Australia to make full reparations including providing adequate compensation to the authors for harms suffered (paras. 8.13, 11). A novel decision in furtherance of justice.

    Next, a decision by the Australian Land Court in Waratah Coal Pty Ltd v. Youth Verdict Ltd et al. (No 6), made tangible the force of the Torres Strait Islanders’ cultural rights. In denying its recommendation for the issuance of a coal mining lease, the administrative court found, among others, that the evidence showed climate change impacts would have a profound impact on the cultural rights of the Torres Strait Islanders, risking the survival of their culture. This finding was largely driven by the direct application of the Human Rights Act 2019. The court accepted the causal relationship between the mining of coal and the harm to the cultural rights of First Nations peoples. Powerfully, the coal mine project was stopped.   

    Drawing on this momentum and going a step further to secure enforceable remedies, Pabai v. Commonwealth of Australia, asked the Australian national court to operationalize its discretion to reach a similar judgement in tort law. However, the court declined to do so. In their primary case, claimants alleged that the Commonwealth owed a duty of care to all Torres Strait Islanders to take reasonable steps to protect them, their traditional way of life, and the Torres Strait and its marine environment, from the current and projected impacts of climate change on the Torres Strait Islands (Judgment Summary). They alleged that the Commonwealth breached this duty when setting disingenuous greenhouse gas emissions reduction targets in 2015, 2020, 2021 and 2022. As a result of the breach, they claimed that the Torres Strait Islanders suffered harms, primarily cultural losses. Their alternative case similarly alleged that the Commonwealth owed a duty to Torres Strait Islanders to take reasonable care to avoid causing property damage, loss of fulfilment of Ailan Kastom and injury arising from a failure to adequately implement adaptation measures to prevent or minimize the current and projected impacts of climate change in the Torres Strait Islands. This claim centered on a failed Seawalls Project. The court ultimately hung its hat, for both the primary and secondary case, on a political question, reasoning that government decisions and policies are not properly or appropriately made the subject of common law duties of care. The Commonwealth owes no such duty to Torres Strait Islanders.

    Traditionally, a finding of no duty exhausts the inquiry. Here however, in its rigorous analysis of all elements including duty, breach, causation, and damages, the court marks critical signposts. So, towards achieving comprehensive justice—respect and remedy—Pabai teaches three fundamental lessons: (1) the need to communicate with specificity, resisting abstractness in litigation; (2) the need to adopt a fiduciary standard when executing remedies; (3) and the urgent need to diversify approaches to relief, minimizing risks flowing from failed climate litigation. An Indigenous child of Pasifika, I too, learn.

    1. Claims must be concrete, and harms redressable.

    The court rejects Pabai’s sweeping abstractions, occupying the claim from pleading to prayer for relief. Claimants’ application focuses heavily on laying the foundation for climate change and its broader implications such as sea-level rise. While important, it fails to also adequately make a case for specific individual harms, as is necessary for the tort of negligence. The court notes, “the applicant’s primary case was, it would be fair to say, pleaded in somewhat broad, elaborate and, at times, convoluted terms” (para. 32). Because climate change invokes unique spatial and temporal elements, it is tempting to stay in abstract ambiguity. While this litigation style worked previously in international and administrative fora, it does not pass muster in tort law at the national level. Claimants failed to sufficiently equip the court with the precise tools to translate tangible and intangible experiences into injuries-in-fact. The court summarizes that the loss of fulfilment of Ailan Kastom is not a recognized compensable “species of harm” (Judgment Summary). In its closing argument, the Commonwealth exclaims, there is no evidence to establish damage to property, or personal injury, disease or death, and claimants have not sought to quantify their losses (para. 11). Quantification is the language of tort law which seeks to remedy concrete harms. Thus, to succeed, legal arguments, harms, and remedies cannot be too attenuated or remote.

    This compels us to ask, must the court expand tort law to include cultural loss or can concrete losses relating to cultural practices be described in such a way as to “fit” into existing tort jurisprudence? The answer is more normative, but to communities facing imminent loss, the machine is likely less important than the output. The priority is always on the award of remedies, as a matter of justice. The court is free to decide how to get there. Here, however, Pabai spins the court around by forcing too many novel and abstract inferences:

    • To establish causation, plaintiffs advanced a seven-point causal chain that ultimately reasoned that it “matters not that it may not be possible to measure or quantify the effect that the additional emissions may have had on global temperature increases, or the specific impact that the increase in global temperature referrable to the increased emissions may have had on climate change in the Torres Strait” (para. 43).
    • “As for the loss and damage suffered by the applicants and other Torres Strait Islanders, the applicants’ case ultimately focused primarily on what was said to be the collective loss of fulfillment of Ailan Kastom suffered by all Torres Strait Islanders arising from the damage to or degradation of the land and marine environment of the Torres Strait Islands. There was very limited evidence in respect of damage to the applicants’ personal or real property” (para. 44).
    • “The applicants’ alternative case in negligence against the Commonwealth was also initially expressed in very broad and general terms. … Ultimately, however, the applicants were effectively compelled to fall back on a far more limited case” (paras. 45, 46).

    Pabai’s prayer for relief does not rescue. It’s broad-brushed and speculative nature sparks a redressability concern. Can the court deliver what the claimants seek? Here, injunctive relief would require the Commonwealth to “… implement such measures as are necessary to: protect the land and marine environment of the Torres Strait Islands and the cultural and customary rights of the Torres Strait Islanders, including Applicants and Group Members, from GHG [greenhouse gas] emissions into the Earth’s atmosphere; reduce Australia’s GHG emissions with the Best Available Science Target; and otherwise avoid injury and harm to Torres Strait Islanders, including the Applicants and the Group Members, from GHG emissions into the Earth’s atmosphere” (para. 52). Arguably necessary as a global and political matter, this grand remedyasks the court to grant relief that is likely inappropriate and impractical for it to redress. Thus, beyond the scope of negligence, too squishy, Pabai fails.

    Inundating the court with abstract claims and novel legal arguments left little room in its torts imagination to consider harmful impacts to culture, well within its discretion (see Stolen Generations’ cases). Justice Wigney conceded, “[w]hile I have considerable sympathy for the applicants’ contention that Ailan Kastom should be recognized as capable of protection by law, I do not consider that it is open to me, sitting as a single judge of this Court, to recognize, for the first time, that participation in, or enjoyment or observance of, customs, traditions, observances and beliefs, can constitute or comprise rights or interests capable of protection by law.” (para. 1131). Setting precedent on this point should have been the most salient priority as it would have been of greatest benefit to the Torres Strait Islanders and the broader Indigenous community. For remedies, especially compensation, to realize, cultural loss would be best if recognized at the national level. Billy decided, at the international level, that the Australian government ought to pay compensation. However, within their sovereign authority, Australia determined otherwise. Instead, they offered consultation and programmatic funding as more appropriate relief. Hence, individual and communal harms are best redressed at the national level where judgments are binding on the state and relief is not optional or open to interpretation, and enforcement fleeting.

    Legitimizing cultural loss across legal fora is a necessary first step in adjudicating with justice in climate change. For Indigenous peoples, tortious harms to our person and property implicate cultural loss. This is a mere translation gap, not a values divergence. Establishing cultural loss as a harm in tort law does not depart from traditional jurisprudence. Underlying tort law is culture, with common examples to include ideals of privacy, products, property, and person. For instance, the innkeepers’ rule which imposes a heighted duty of care to guests and their property and attaches liability for loss and damage, advances a cultural expectation of travelers on their hosts, binding hotels even in the present-day. So, as applied to Torres Strait Islanders, Indigenous cultural expectations need an expression, a language in the law. The term ‘cultural loss’ serves merely to articulate claims and be made whole, fitting squarely within the purpose and intention of tort law. Sadly, Pabai kicks this finding down the road.

    1. Remedy implementations implicate fiduciary duties.

    Pabai’s argument in the alternative reveals a misplaced fiduciary expectation. Relying on the Council of Australian Governments (COAG) Principles, which sketch management roles and responsibilities for climate-change risks between the Commonwealth, State and Territory, and local governments, Pabai asserts that the Commonwealth, in its leadership role, assumed responsibility for the funding and proper execution of the local Seawalls Project (see para. 1156). The court expressly disagrees, calling the assertion a “misreading or misconstruction” (para. 1156). COAG Principles require local governments to play a critical role “contribut[ing] appropriate resources to prepare, prevent, respond and recover from detrimental climate impacts” (para. 1158). Offloading responsibility frustrates the court. COAG principles are grounded in cooperative governance to benefit Australia as a whole. It is a sharing, not a shifting of burdens. So, backed into a corner, the court egregiously comments “[i]t is difficult to see that the funding of an infrastructure project like the Seawalls Project involves a matter that may affect national prosperity or security” (para. 1157). It does (Parliamentary Acts affirm). At its core and as a matter of principle, refusing to embrace a shared fiduciary duty hurt Pabai.

    The Seawalls Project lies incomplete; the budget ran out. Because the project funding was secured through a competitive grants scheme whereby approval hinged on an “efficient, effective and ethical” proposal, the Torres Strait Council, the local governing body, cemented their fiduciary duty in their proposal (para. 1163). Not mere words, they were obligated to act in the best interests of the beneficiary, the Torres Strait Islands—the place and its people.

    So, what went wrong? A wholly reliant posture sought to delegate a non-delegable duty. The duty to lead and ensure completion of this project rested squarely on the Torres Strait Islanders as peoples of that land, not the Commonwealth, as argued. Australia could assist, but never rightfully take over. The court suggests an underestimation of the overall extent and costs to be the cause of the incompleteness, not deficiencies by the Commonwealth. It reminds, “The [Torres Strait Island Regional Council] was responsible for the implementation of the Seawalls Project” (para. 780). The local government failed to embrace its own fiduciary role and responsibility regarding the Seawalls Project. Consequently, the court held that while the Commonwealth provided funding, a combined project total of 64 million dollars, far exceeding the initial 5-million-dollar grant, they did not inhere a duty to lead and coordinate the project (Judgment Summary). That responsibility rightfully rests at home; our duty to place, as Indigenous peoples, is non-delegable.

    1. Litigation risks to relief must be diversified.  

    The Torres Strait Islanders cannot be left to battle the most devastating impacts of climate change alone. Their harms compel help. Because remedies are critical, solutions and hope cannot be concentrated on litigation alone. Litigation is but one tool in a much larger toolkit and as evinced here, it can fail.

    The most detrimental cost of unsuccessful litigation is time. As the impacts of climate change increase and become more frequent, delays compound harm. Frontline communities must adopt a multi-pronged strategy for survival. While litigation percolates, remedies can operationalize with the help of private and public partners. Diversification ensures a minimum threshold of safety. The health and safety of a peoples so vulnerable to mass climate devastation must never be a zero-sum game.

    At times, bold litigation moves for the benefit of all push to the back the basic and immediate priorities of individual claimants. For a time, they are heralded as heroic champions challenging the protected status quo. But with a loss, they soon fade into the noise, still without help. The strategic choice of establishing a new category in tort, cultural loss, over particularizing harms to fit within the traditional torts framework, proved consequential for the Torres Strait Islanders.

    Taking a step back to consider fairness, we might ask: must those facing imminent tortious harms also be the pacesetters for legal innovation, celebrating occasional wins, but mostly burdened by catastrophic losses? I would proffer that there exists a balanced approach that a min, secures reasonable remedies, and when available, reaches for world-benefitting precedent. This is my ambition for climate litigation involving, especially, frontline communities who cannot afford to lose. Until the law begins to trust that Indigenous communities do not bring absurd claims, we must communally problem-solve to truly hear and understand what Uncle Pabai truly means when he whispers, “all our land has now washed away” (Fred Pabai Sworn Affidavit).

    Concluding, respect requires prudent action. This is within reach.