Category: Domestic court

Categories
2019 Domestic court 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.

Categories
Business responsibility / corporate cases Domestic court 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.

Categories
Adaptation Domestic court France Paris Agreement Private and family life Right to life Vulnerability

Urgence Maisons Fissurées Sarthe et al. v. France

Summary:
On 7 April 2025, a group of five individuals litigants and nine civil society organisations presented a request for adaptation measures to the French authorities. Building on GHG emissions reductions litigation, including the ECtHR’s 2024 KlimaSeniorinnen case, this legal action seeks adaptation measures by the French government. The litigants, who are supported by Oxfam France, Notre Affaire à Tous, and Greenpeace France, seek a revision of the third National Plan for Adaptation to Climate Change (PNACC 3) and, more broadly, the adoption of any useful measures to ensure or reinforce France’s adaptation to the effects of climate change. The action argues that the State has a general obligation to take adaptation measures, which must be aimed in particular at strengthening adaptive capacities, increasing resilience to climate change and reducing vulnerability to such change (I.A), and by sectoral and cross-cutting obligations (I.B).

This obligation, they argue, flows not only from domestic constitutional law, but is also clarified and reinforced by international and EU law (including the UNFCCC and the Paris Agreement) and by the law of the Council of Europe, specifically the European Convention on Human Rights. This instrument, they argue, drawing on the ECtHR’s recently climate case-law and its broader environmental jurisprudence and focusing particularly on the right to respect for private and family life (Art. 8 ECHR) and the right to life (Art. 2 ECHR), obliges the State to put in place an appropriate legislative and regulatory framework to effectively protect human life and health against the risks and consequences of climate change. It also requires the State to take preventive measures of a practical nature, in order to protect citizens whose lives may be at risk, and to mitigate the most serious consequences of climate change. And, finally, it requires the State to ensure the effective application of the framework and of the adaptation measures thus put in place, on the basis of the best available science. Reiterating long-standing case-law of the ECtHR, the litigants argue that the French state has an obligation to take all necessary measures to limit exposure to natural risks resulting from climate change, and to ensure that those affected are informed of the existence of such risks.

The action began as a request addressed to the state, which is a procedural requirement under French law before bringing a case to the Council of State (Conseil d’État). If the state responds in an unsatisfactory way or not at all, the case can be then be taken to the Council of State.

Last updated:
7 July 2025.

Categories
Children and young people Children's rights/best interests Domestic court Emissions reductions/mitigation Fossil fuel extraction Renewable energy Right to life Separation of powers United States of America

Lighthiser v. Trump

Summary:  
On 29 May 2025, a case was filed on behalf of 22 youth plaintiffs from five US states (Montana, Oregon, Hawai‘i, California, and Florida) before the US District Court in the District of Montana with the support of the NGO Our Children’s Trust and others. The plaintiffs in this case contested a series of climate-related executive orders issued by the Trump administration, arguing that these measures threaten their constitutional rights to life, health, and safety. This includes executive orders aimed at “unleashing” fossil fuels, anti-clean energy measures and those removing climate science-related information from federal websites.

The case has been brought against US President Donald Trump as well as various government agencies and offices including the Environmental Protection Agency (EPA), the Department of the Interior (DOI), the Department of Energy (DOE), the Department of Transportation (DOT), the US Army Corps of Engineers (USACE), the National Aeronautics and Space Administration (NASA), the Department of Commerce (DOC), the National Oceanic and Atmospheric Administration (NOAA), the National Science Foundation (NSF), the Department of Health and Human Services (HHS), the National Institutes of Health (NIH), and the United States of America itself.  

Measures challenged:
The lawsuit challenges three specific executive orders, as well as measures to delete climate science information from government websites. The contested executive orders are the following:

  • Executive Order 14154: “Unleashing American Energy” (which prioritizes oil, gas, and coal over renewable energy).  
  • Executive Order 14156: “Declaring a National Energy Emergency” (which directs federal agencies to invoke emergency powers to fast-track fossil fuel production).
  • Executive Order 14261: “Reinvigorating America’s Beautiful Clean Coal Industry” (designating coal as a “mineral” under federal policy, thereby granting it priority status for extraction and development on public lands). 

Claims made:
The youth plaintiffs argue that the Trump administration’s executive orders violate their constitutional right to life (under the fifth amendment to the US Constitution) by increasing climate pollution. They also argue that the measures are an act of executive overreach, or in other words an ultra vires act going beyond presidential powers, and that augmenting fossil fuel production, suppressing climate science, and blocking clean energy solutions is a violation of the ‘state-created danger doctrine’, which triggers a governmental duty to protect against government-induced harm.

Suggested citation:
US District Court of Montana, Lighthiser v. Trump, filed on 29 March 2025 (pending).

Last updated:
3 June 2026.

Categories
Domestic court Emissions reductions/mitigation European Convention on Human Rights Fair trial Farming Just transition litigation Paris Agreement Private and family life Right to development and work Right to health Right to life Right to property Separation of powers Standing/admissibility Switzerland Uncategorized Victim status Vulnerability

Uniterre et al. v. Swiss Department of the Environment (Swiss Farmers Case)

Summary:
On 5 March 2024, a group of nine individual Swiss farmers, along with 5 associations representing farming-related interests, submitted a request to the Swiss Department of Environment, Transport, Energy and Communication (DETEC), demanding enhanced governmental action to protect them against the impacts of climate change. Noting increasing summer drought periods that particularly impact their human and constitutional rights and livelihoods, they alleged inadequacies in the existing Swiss climate policy response. In doing so, they submitted that:

As farmers and as associations defending the interests of farmers, the Petitioners and Petitioner Associations are particularly affected by climate change, which infringes their fundamental rights. It affects their harvests and jeopardizes the viability of their farms. Climate disruption has been encouraged by the Authority’s climate inaction. This serious negligence on the part of the Authority now justifies the filing of the present petition (translated from the original French).

Response by DETEC:
On 20 September 2024, DETEC rejected the petitioners’ request, finding that the alleged omissions did not impact the individual petitioners more intensely than other segments of the population, meaning that they lacked an interest worthy of protection, as well as standing. The same result was reached concerning the five petitioning associations (which are Uniterre, Kleinbauern-Vereinigung, Biogenève, Schweizer Bergheimat and Les jardins de cocagne).

The request to DETEC was made pursuant to Art. 25a of the Swiss Federal Administrative Procedure Act (APA), requesting that the government (and more specifically DETEC) should refrain from the alleged unlawful acts impacting the petitioners’ human and constitutional rights and livelihoods. Art. 25a APA provides that:

In other words, Art. 25a APA allows persons whose rights or obligations are impacted by ‘real acts’ of the federal authorities to seek a (subsequently legally contestable) ruling concerning the situation. This approach has been used by climate litigants to contest policy lacunae given that constitutionality review of existing federal legislation is not possible under Swiss Constitutional law. A similar request was the starting point of the landmark KlimaSeniorinnen case that was ultimately decided upon by the European Court of Human Rights (ECtHR) in 2024.

However, and much like the KlimaSeniorinnen association and its members, the present petitioners did not succeed with their request to DETEC. On 20 September 2024, DETEC rejected their request. Uniterre, one of the petitioning associations, argued that DETEC had thereby ignored the ECtHR’s KlimaSeniorinnen judgment, which established that there were access to justice issues for climate applicants in Switzerland by finding a violation of the right to a fair trial (Art. 6 of the European Convention on Human Rights (ECHR)).

DETEC’s reasoning did note the KlimaSeniorinnen judgment. First, it argued that the ECtHR had not considered recent developments in Swiss climate policy, emphasizing that Switzerland had a “long history of climate policy” and had only “barely” missed its 2020 national emissions reductions target. DETEC also noted the domestic findings in the KlimaSeniorinnen case, where Swiss courts had left open the question of whether the applicant association in that case had standing. It did not, in doing so, mention the later ruling of the ECtHR, which found that the conduct of these domestic proceedings and particularly the domestic instances’ treatment of the association’s standing claim had violated fair trial rights. Instead, it relied only on the reasoning of the domestic instances in KlimaSeniorinnen to find that the plaintiffs in the present case did not have a sufficient interest to seek legal protection given that they had failed to demonstrate “how they are more affected by the material acts of which DETEC is accused than the rest of the agricultural world, or other economic sectors that may be impacted by global warming (forestry, fishing, etc.), or other groups of people (children, pregnant women, the elderly, etc.). Nor do the individual Claimants establish for each of them that a particular level and severity of damage is likely to be caused by climate change.” (translated from the original French). DETEC found that “what is at stake in the application is the protection of the community as a whole, and not just of individuals, so that it is akin to a form of actio popularis [meaning] that the individual applicants are pursuing public interests that cannot justify victim status.”

Concerning the standing of associations, DETEC noted that the Swiss federal executive had “rejected the extension of associations’ right of appeal to include climate issues, as set out by the European Court of Human Rights [in KlimaSeniorinnen]”. It also noted that the associations did not pursue the specific goal of defending the fundamental rights of their members or other affected individuals in Switzerland, and that alleging that they did do so would be impossible because the associations in question “were all created before the global awareness of the threat of anthropogenic global warming, and therefore before the adoption of the UNFCCC in 1992.”

Overall, DETEC found that while it could not rule out “that the State’s material acts (actions or omissions) in the field of climate change are in principle capable of producing sufficient effects on the Petitioners to affect the right to protection of private and family life, the right to protection of the home guaranteed by art. 13 para. 1 Cst. as well as the guarantee of property (art. 26 Cst.) and economic freedom (art. 27 Cst.) [and] that Switzerland can, in a global context, have an influence on global warming, the fact remains that it is too small to have a decisive influence in this area, in the sense that there is no direct causal link between the actions or omissions of Switzerland and the effects of global warming, the latter being marked above all by the major industrial powers” (translated from the original French). This meant that “Switzerland’s material actions, while morally and politically relevant, have only a marginal effect on global climate change”.

Case before the Swiss Federal Administrative Tribunal:
On 23 October 2024, the plaintiffs challenged the DETEC decision before the Swiss Federal Administrative Tribunal. They invoked four main grounds for appeal, namely that:

  • By ignoring the ECtHR’s KlimaSeniorinnen ruling, the decision violates federal law, the principle of the separation of powers and the binding force of judgments of the ECtHR (art. 46 ECHR). In particular, the applicants argue that the federal executive has undermined judicial oversight “by arrogating to itself the right to emancipate itself from judicial control”.
  • DETEC’s actions and omissions are contrary to law, as is clear from the KlimaSeniorinnen ruling.
  • The (individual) appellants have standing to bring an action, contesting DETEC’s arguments about the limited impact of Swiss emissions on a global scale and arguing that there is no right to “l’égalité dans l’illégalité”. They emphasized the economic losses and health impacts facing the appellants, with impacts on several fundamental rights, and argued that the refusal to recognize the affectedness of the applicants represented a denial of access to justice and a violation of the right to a fair trial as enshrined in domestic law and Article 6 ECHR.
  • The appellant associations have standing as parties, and DETEC’s refusal to follow the case-law of the European Court of Human Rights (KlimaSeniorinnen) in this regard had violated fair trial and access to justice entitlements enshrined, among others, in Art. 6 ECHR. The ECtHR had not required associations’ statutes to explicitly mention fundamental rights protection. Furthermore, the statutes and aims of the five associations all related to protecting smallholder, sustainable and/or biological farming, with one association (Uniterre) explicitly pursuing the protection of the human rights of peasants and other rural workers as recognized in the 2018 UN Declaration on the Rights of Peasants (UNDROP).

The plaintiffs sought orders to the effect that:

  • An expert study should be commissioned concerning the contribution of climate change to worsening drought in Switzerland and reducing agricultural productivity;
  • The government should be ordered to take every measure needed to avoid negative climate impacts and contribution to chronic drought on Swiss territory, abstain from actions causing corresponding impacts, and take every measure capable of reducing or eliminating the impacts of climate change, chronic drought, and the rights violations complained of.
  • A violation of the right to life (Art. 10 of the Swiss Constitution/Art. 2 ECHR), the right to private life (Art. 13 of the Swiss Constitution/Art. 8 ECHR), the right to property (Art. 26 of the Swiss Constitution, Switzerland not having ratified the first additional protocol to the ECHR that enshrines this right), and the right to economic liberty (Art. 27 of the Swiss Constitution) had taken place.
  • A violation of the climate objectives and environmental protection requirements enshrined in domestic legislation had taken place, insufficient measures had been taken to ensure respect for the Paris Agreement, and overall the sum of the action taken with a direct or indirect impact on the climate had been insufficient.

Status of the case:
Pending before the Swiss Federal Administrative Tribunal.

Case documents:
The full text of the initial request as submitted to the Swiss Department of the Environment, Transport, Energy and Communication (DETEC) is available below, as made available by Advocat.e.s pour le Climat (in French).

2024-03-05-Plainte-25a-PA-AvoC-caviardeeDownload

The DETEC decision is available below.

2024-09-24-DETEC-a-ANL-Decision-concernant-la-requete-du-5-mars-2024_caviardeeDownload

The full text of the appeal to the Federal Administrative Tribunal is available below.

2024-10-24-Recours-au-TAF_caviarde (1)Download

Further reading:

  • More information on the case is available via SwissInfo.
  • See also the comment by Charlotte E. Blattner, Robert Finger & Karin Ingold in Nature.

Suggested citation:
Swiss Federal Administrative Court, Uniterre et al. v. Swiss Department of the Environment (Swiss Farmers Case), case filed 23 October 2024 (pending).

Last updated:
2 June 2025.

Categories
2025 Children and young people Children's rights/best interests Domestic court Right to a healthy environment Right to health South Africa

African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others

Summary:

In African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others, the High Court of South Africa considered a landmark challenge to the government’s continued reliance on coal energy in its national electricity plan. The applicants (a coalition of youth-led and community-based environmental justice organisations) opposed the inclusion of 1,500 megawatts (MW) of new coal-fired power in the 2019 Integrated Resource Plan (IRP 2019). They argued that this decision was unconstitutional, irrational, and disregarded both the worsening climate crisis and the rights of the most vulnerable – especially children and future generations.

The applicants challenged three specific decisions:

  1. The adoption of IRP 2019, which made provision for new coal power.
  2. A subsequent ministerial determination under the Electricity Regulation Act to implement this plan.
  3. The concurrence or approval by the National Energy Regulator of South Africa, which is legally required to agree to such decisions before they can proceed.

The applicants argued that these decisions were unconstitutional, primarily infringing upon the rights to a healthy environment and the well-being of children.

Claim:

The applicants claimed that the government’s decisions to procure 1,500 MW of new coal power violated multiple constitutional rights—primarily Section 24, which guarantees the right to an environment that is not harmful to health or well-being, Section 28(2), which protects the best interests of the child, and the rights to life, dignity, and equality.

They emphasised that coal-based energy generation not only accelerates climate change but also exposes communities—especially poor and historically marginalized ones—to high levels of toxic air pollution. Children, due to their physiological vulnerability, are at greater risk of suffering long-term health consequences. The state, they argued, had a positive duty to consider these human impacts, especially where irreversible environmental harm and intergenerational injustice were at stake.

The applicants further claimed that the process leading to these decisions was procedurally flawed, lacking meaningful public participation, transparency, and adequate consultation with those most affected. They framed their challenge as a matter of environmental justice, climate accountability, and the protection of constitutional rights, particularly for those who bear the brunt of environmental degradation without benefiting from its economic returns.

Judgment:

On 4 December 2024, Judge Cornelius van der Westhuizen ruled in favor of the applicants, declaring the government’s plan to procure 1,500 MW of new coal-fired power unconstitutional, unlawful, and invalid. In a significant affirmation of rights-based climate justice, the court found that the government had failed to consider the harmful impacts of coal on health, the environment, and children’s rights. It highlighted that the best interests of children were not given paramount importance, in breach of Section 28(2). It also criticized the lack of adequate public participation and failure to assess cleaner and less harmful energy alternatives.

The court emphasized that the Constitution demands not only the avoidance of environmental harm, but also active promotion of sustainable development and intergenerational equity. It ordered that the coal provisions in the IRP and associated implementation decisions be set aside, and directed the government to pay the applicants’ legal costs.

This ruling sends a powerful message: government policy cannot be separated from its human rights consequences. It reinforces that climate change is not only an environmental issue, but a profound justice issue, affecting the lives, health, and futures of millions—especially the youngest and most vulnerable South Africans.

Document:

The case documents are available here and here.

Suggested citation:

African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others (56907/2021) [2024] ZAGPPHC 1271 (4 December 2024).

Status of the case:

Decided.

Last updated:

20 March 2025.

Categories
Biodiversity Business responsibility / corporate cases Chile Domestic court Loss & damage Paris Agreement Right to a healthy environment Uncategorized

State Defense Council vs. Quiborax S.A.

Summary:
On 2 July 2024, a complaint was filed by the public prosecutor of Antofagasta, representing the State of Chile, against Quiborax S.A., a limited liability company in the mining, agrochemical and energy sectors that produces and exports boric acid. The case concerns ulexite mining in the surface salt deposits in the Salar de Surire, located in the commune of Putre, Region of Arica and Parinacota (the ‘Salar’), and related environmental damage. This includes permanent damage to the Salar itself, alterations of runoff and flooding patterns, a loss of supporting, regulating and cultural ecosystem services, serious habitat alterations and losses, and biodiversity and environmental impacts. This resulted in continuous, cumulative, permanent and irreparable environmental damage to an iconic national and international protected area. The State sought compensation, mitigation and risk reduction measures. In doing so, it relied on Section 19 Nº 8 of the Chilean Constitution, which recognizes the right to live in an environment free of pollution, mandating the State to ensure that this right ‘is not affected and to protect the preservation of nature’, while its subsection 2° confers power to the legislator to ‘establish specific restrictions to the exercise of certain rights or freedoms to protect the environment’.

In doing so, the State cited principles of conservation and sustainable development, and Chile’s international obligations including the Convention for the Protection of the Flora, Fauna and Natural Scenic Beauty of the countries of the Americas (Washington Convention); the Convention on Biological Diversity; the Convention on Biological Diversity; the Convention on Wetlands of International Importance (RAMSAR Convention); the Convention on the Conservation of Migratory Species of Wild Fauna; the Convention on the Protection of World Cultural and Natural Heritage; the Convention on the Conservation of Migratory Species of Wild Fauna; and the Convention on the Protection of World Cultural and Natural Heritage, the UNFCCC, and the Paris Agreement as well as Chile’s Nationally Determined Contribution under that framework.

The State also invoked:

the multiplier effect of climate change and the need to consider this liability for environmental damage, as it constitutes an unavoidable context that must be taken into account, given its capacity to enhance and reinforce the short, medium and long term effects of impairments, deterioration or losses inflicted on environmental components. In this sense, climate change multiplies the effect of impairments, deterioration or losses affecting the regulation or support services provided by abiotic components, such as soil or water or ecosystems themselves, especially threatening unique or singular ecosystems, valuable for their expression of biodiversity. This is precisely what the sixth report of the United Nations Intergovernmental Panel on Climate Change (from now on ‘the IPCC’) on the physical basis of climate change, published in August 2021, has revealed in relation to the environment and sustainable development. It is therefore urgent, on the one hand, to determine the exact influence of climate change on this degraded ecosystem as the amount of rainwater from the summer rains increases, and, on the other hand, to strive to conserve a climatic refuge such as Surire, which sustains the biodiversity not only of the region and the country, but also of the entire world.

Status of the case:
Pending

Last updated:
12 February 2025

Categories
Brazil Class action Deforestation Domestic court Environmental racism Indigenous peoples rights Indigenous peoples' rights Just transition litigation Minority rights Non-discrimination Rights of nature

São Paulo State Public Defender’s Office v. São Paulo State Land Institute Foundation (ITESP) et al.

Summary:
On 31 March 2014, the São Paulo State Public Defender’s Office brought a “Public Civil Action” against the São Paulo State Land Institute Foundation (ITESP), the São Paulo State Foundation for Forest Conservation and Production (Fundação Florestal), and the State of São Paulo. The case sought annulment of the decision to protect biodiversity by creating a new State Park, the Alto Ribeira Tourist State Park (PETAR), despite the fact that the area in question overlapped with a traditional Quilombola territory, or a territory settled by Afro-Brazilian descendants of escaped slaves. The ruling highlights environmental racism as causing the marginalization of this community. The plaintiffs argued that the Quilombola are protectors of nature and have a relationship of mutual dependence with it and requested territorial recognition.

Ruling of 29 December 2023:
On 29 December 2023, a ruling was issued upholding the claim of the Quilombola community of Bombas and invalidating the decision to create the State Park to the extent that it overlapped with the Quilombola territory. The court established that it could review the conformity of domestic law against international human rights norms, finding also that ILO Convention 169 was hierarchically superior to domestic constitutional law. It also highlighted the difficulty of balancing the interests of the Quilombola community and PETAR, noting that both concerned internationally recognised human rights – the Quilombola community given its traditional customs, connection to nature and unique culture, and PETAR as a World Heritage Site at the heart of the Atlantic Rainforest that was home to a number of rare species of flora and fauna.

Exploring the issue of environmental racism, the court found that:

The Socio-Environmental Institute (ISA) recently produced a series of reports recognising that the Bombas community is subject to environmental racism. The issue is linked in the sense that despite the abstraction and supposed generality of the law, when it is applied to a specific case in environmental terms, because it disregards original realities (the way of life of the traditional community from the way of life of the urbanised community), it imposes burdens that make survival almost unbearable, because it creates prohibitions that affect the subsistence of groups that feed themselves, sustain themselves, produce minimal income and extract essential elements for their maintenance from the environment. Not that this isn’t also the case in urbanised society, after all, there’s no denying that all consumer goods originate from materials that are exploited on a large scale in world production and that originate from nature, such as oil.

To say that there is a precise separation between humans and the environment, as well as that there is real protection, is in itself a huge contradiction. After all, we are all on a planet and making use of its resources (…).

Ultimately, the court found the decision establishing the Park to be incompatible with Article 68 of the Transitional Constitutional Provisions Act (ADCT) and ILO Convention 169. Although the decision noted the problem of environmental racism, it found that the marginalization at stake stemmed from combined social, environmental, historical, and legal factors. It affirmed the relationship between traditional communities and the environment and the need to halt human impacts on natural ecosystems.

As noted by Climatecasechart, the original claim did not reference climate change; this connection was introduced judicially in the ruling of 2023.

On 5 March 2024, the São Paulo State Attorney General’s Office appealed. In doing so, it highlighted the threat of climate change and the importance of carbon sinks, such as the State Park in question.

Further information:
To read the full judgment in the case (in Portuguese), click here.

Last updated:
12 February 2025.

Categories
2025 Domestic court Emissions reductions/mitigation Ireland Just transition litigation Private and family life Renewable energy Victim status

Coolglass Wind Farm Limited v. An Bord Pleanála

Summary:
In a January 2025 judgment, the Irish High Court of Planning and Environment ruled in favor of an appeal challenging the refusal of planning permission for a wind farm development. In doing so, it applied EU law and the European Convention on Human Rights (ECHR), as interpreted in the 2024 KlimaSeniorinnen judgment by the European Court of Human Rights, to find that the relevant planning authority needed to have regard to Ireland’s renewable energy targets.

Facts of the case:
In a judgment delivered on 10 January 2025, the Irish High Court of Planning and Environment ruled on the refusal of planning permission for a wind farm development. The case raised an issue of statutory interpretation relating to the Irish Climate Action and Low Carbon Development Act 2015, as amended in 2021. Planning permission for the wind farm project sought by Coolglass Wind Farm Limited was refused by the responsible board (An Bord Pleanála, Ireland’s national independent planning body that decides appeals on planning decisions made by local authorities) because it was contrary to planning regulation and rules on sustainable development of the area. Coolglass appealed, arguing that the Board was failing to approve adequate planning applications to meet Ireland’s 2030 renewable energy targets in the Climate Action Plan 2024, and was thereby failing to comply with its obligations under section 15 of the Climate Action and Low Carbon Development Act 2015. Coolglass also argued that the board’s decision was incompatible with the ECHR and with Regulation (EU) 2022/2577 of 22 December 2022 laying down a framework to accelerate the deployment of renewable energy.

Findings:
The Court, in a ruling by Humphreys J., upheld the appeal by Coolglass. It held that the board had failed to exercise its powers in a manner that complied (as far as practicable) with Ireland’s climate objectives and policies, and that this failure also constituted a breach of duty under the European Convention on Human Rights, read in light of the KlimaSeniorinnen judgment, as well as a breach of EU law obligations.

On the human rights aspect of the case, the Court ruled that:

109. I agree with the applicant that one must conclude that art. 8 of the ECHR imposes a positive obligation on the State to put in place a legislative and administrative framework with respect to climate change designed to provide effective protection of human health and life, and a further positive obligation to apply that framework effectively in practice, and in a timely manner.
110. Ireland has a framework of course but (as discussed above under the heading of EU law conformity) it is clear that it is not being complied with. The latter failure, on the logic of Klimaseniorinnen, involves a breach of art. 8 of the ECHR.
111. The application of the framework in practice is crucial. As we know from the termination of pregnancy context (Case of A, B and C v. Ireland [GC], no. 25579/05, ECHR 2010 (https://hudoc.echr.coe.int/fre?i=001-102332)), the Strasbourg court takes a dim view of a situation where there are laws on the books but a failure to put in place practical arrangements to implement them.
112. The problem for the opposing parties here is firstly that an interpretation of s. 15(1) that allows the climate goals in legislation to fall by the wayside due to a failure by the board to exercise discretionary powers to override development plans is an interpretation that fails to conform with ECHR obligations contrary to s. 2 of the 2003 Act.
113. Secondly, the failure by the board to use its discretionary powers in that manner constitutes a failure to act consistently with ECHR obligations contrary to s. 3 of the 2003 Act.
114. The board rather weakly raises the defence that a body corporate doesn’t have locus standi to argue for the right to a private life in a climate-relevant sense under art. 8 of the ECHR. But that isn’t the point of course. Whether an individual applicant has standing in a hypothetical case or not doesn’t affect the interpretation of a statutory provision. The point being made is that the court should interpret the 2015 Act as amended in an ECHR-compatible manner. Such an interpretation supports the applicant’s proposition that s. 15(1) should be read as meaning what it says.
115. Thus the requirement to read legislation in an ECHR-compliant manner supports an interpretation of s. 15 that goes beyond the board’s have-regard-to interpretation and the State’s meaningful engagement interpretation. It reinforces the applicant’s case that the interpretation should ensure that ECHR obligations are complied with in practice, including compliance in practice with stated goals in relation to renewable energy infrastructure.

Overall, the Court ruled that:

116. Sometimes (although not as often as some people think) the language, context and purpose of a provision, or the requirements of EU law conformity or ECHR conformity, pull in different directions. This is not such a case.
117. On the contrary, all vectors of interpretation point strongly in the same direction – the need for an imperative reading of s. 15(1) in line with what it says, namely that the board and any other relevant body is required to act in conformity with the climate plans and objectives set out in the subsection unless it is impracticable to do so.
118. I therefore reject the watered-down interpretations of s. 15(1) offered by the opposing parties here and accept the applicant’s interpretation.

The Court granted Coolglass’s appeal and ordered that its planning application be remitted to An Bord Pleanála for renewed consideration.

Suggested citation:
Irish High Court of Planning and Environment, Coolglass Wind Farm Limited v. An Bord Pleanála [2025] IEHC 1, H.JR.2024.0001244, 10 January 2025.

Last updated:
4 February 2025

Categories
Children and young people Children's rights/best interests Domestic court Emissions reductions/mitigation Estonia Fossil fuel extraction Gender / women-led Paris Agreement Right to a healthy environment

Fridays for Future Estonia vs. Environmental Board

Summary:
On 25 June 2024, Fridays for Future Estonia, a youth environmental movement, announced that it had filed two cases against the continued operation of a state-owned fossil fuel (shale oil) plant. The Estonian Environmental Board had granted a state-owned company, Enefit Power, a permit to operate until 2035. Fridays for Future Estonia filed two complaints to challenge the permit: one was brought by MTÜ Loodusvõlu, an NGO established in 2019 by Fridays for Future Estonia with the goal of managing the financial side of the movement, and the other by a young activist within the movement named Elo-Lee Maran.

The case follows on a separate set of proceedings concerning a 2020 decision to award Enefit Power’s parent company 125 million Euros to construct a shale oil plant. MTÜ Loodusvõlu filed a lawsuit in the Tartu Administrative Court to revoke the construction permit, which was upheld in October 2023 by the Supreme Court, which annulled the construction permit. Two months later, the municipality of Narva-Jõesuu issued a new construction permit for the plant.

According to Fridays for Future, Elo-Lee Maran’s case represents the first climate case brought by an individual in Estonia. The case argues that exacerbating climate change is a threat to human rights, including the rights of children under the UN Convention on the Rights of the Child. No only does the plant’s operation hinder the achievement of the targets set out in the Paris Agreement and the National Energy and Climate Plan. It also, so it is alleged, violates Elo-Lee Maran’s right to a healthy environment under domestic and international law. Depleting Estonia’s share of the ever-smaller carbon budget will require Estonia to limit people’s basic freedoms intensely in the future, which is not in the best interests of a child.

The case will be heard by the Tallinn Administrative Court in December 2024.

More information:
For more information, see this overview from Fridays for Future.

Last updated:
29 November 2024