Categories
Children and young people Domestic court Emissions reductions Germany Paris Agreement Private and family life Right to a healthy environment Right to life

Luca Salis et al. v. Sachsen-Anhalt

Summary:
This constitutional complaint was brought by three young people against the German State (“Bundesland”) of Sachsen-Anhalt in the wake of the Neubauer v. Germany judgment of the German Bundesverfassungsgericht. They contest the State’s failure to chart a course towards greenhouse gas emissions reductions by adopting legislation on climate protection. The state abandoned efforts to adopt such a law after an initiative in this regard failed in 2013, relying on the Paris Agreement and the German Constitution. Like in the related case of Lemme et al. v. Bavaria, the plaintiffs here argue that the Bundesländer share responsibility for protecting their lives and civil liberties, along with those of future generations, within their respective spheres of competence. According to the plaintiffs, the lack of legislation on climate action on the state level violates the German Constitution and the reductions regime under the Paris Agreement. They also submit that they have a fundamental right to defend themselvse against future rights impacts caused by the lack of climate measures.

Rights invoked:
The applicants invoked violations of freedoms guaranteed under the domestic Constitution, especially those in Art. 2(2) of the German Constitution (right to life and physical integrity and freedom of the person), in combination with Article 20a of the Constitution (protection of the natural foundations of life and of animals). They invoked these rights in their ‘intertemporal dimension’, i.e. taking on the framing of the Neubauer case, which considered that failure to act now on climate change means excessively impacting future freedoms.

Suggested citation:
German Bundesverfassungsgericht, Luca Salis et al. v. Sachsen-Anhalt, constitutional complaint submitted on 9 September 2021.

Related proceedings:
For more on the two complaints brought in the related Lemme case, see below.

Categories
Children and young people Domestic court Emissions reductions Germany Paris Agreement Right to a healthy environment Self-determination

Lemme et al. v. Bayern

Summary:
This case is part of a set of proceedings brought by ten youth plaintiffs concerning the codification of the adjusted climate goals brought about in response to the Neubauer v. Germany judgment of the German Bundesverfassungsgericht. According to the applicants, in their constitutional claim, the German States (“Bundesländer”) share responsibility for protecting their lives and civil liberties, along with those of future generations, within their spheres of competence. They argue that the lack of legislation on climate action on the state level violates the German Constitution and the reductions regime under the Paris Agreement, and that they have a fundamental right to defend themselvse against future rights impacts caused by the lack of climate measures.

Regulatory context:
The Bavarian Climate Protection Act (Bayerisches Klimaschutzgesetz) aims to reduce greenhouse gas emissions by 55% compared to 1990 levels by 2030. It also aims to achieve net zero emissions by 2050, and requires Bavaria to offset emissions after 2030. This has been implemented through a climate protection program. According to the plaintiffs, the lack of a deadline of adaptation strategy, and the failure to provide differentiated targets or instruments for implementation of compliance, mean that the Bavarian law falls short of the Federal requirements on climate protection measures.

Rights invoked:
The applicants invoked violations of various freedoms guaranteed under the domestic Constitution, especially those in Art. 2(1) of the German Constitution (right to free development of one’s personality), in combination with Article 20a of the Constitution (protection of the natural foundations of life and of animals). They invoked these rights in their ‘intertemporal dimension’, i.e. taking on the framing of the Neubauer case, which considered that failure to act now on climate change means excessively impacting future freedoms.

Related proceedings:
In addition to the constitutional proceedings, a subsidiary popular complaint has been brought by the same group of applicants to contend that the Bavarian Climate Protection Act (Bayerisches Klimaschutzgesetz), along with the wider regulatory context, is in violation of constitutional rights.

In addition, similar litigation has been brought in other German Bundesländer.

Suggested citation:
German Bundesverfassungsgericht, Marlene Lemme and Nine Other v. Bavaria, constitutional complaint of 30 June 2021.

Categories
Adaptation Australia Domestic court Imminent risk Indigenous peoples' rights Sea-level rise Uncategorized Vulnerability

Australian Torres Straits Islanders case

Summary:
In the Australian Torres Straits Islanders case, modelled on the Dutch Urgenda case, a group of indigenous Torres Strait Islanders living on islands off Australia’s coast initiated domestic class action proceedings before the Federal court of Australia to claim that the Australian government has failed to protect them from climate change, leading to the progressive destruction of their ancestral islands.

Context:
In another, separate climate claim, a group of eight Torres Strait islanders took a Communication to the United Nations Human Rights Committee in 2019, alleging that Australia had violated the human rights of low-lying islanders because of its failure to take climate action.

Petitioners:
This case was brought by two First Nations leaders on behalf of the remote Torres Strait islands of Boigu and Saibai. They brought the case on their own behalf and “on behalf of all persons who at any time during the period from about 1985 and continuing, are of Torres Strait Islander descent and suffered loss and damage as a result of the conduct of the Respondent”.

Arguments made:
Based on scientific evidence, the plaintiffs argue that climate change is already threatening their native title rights and distinctive customary culture. They allege that, due to the progression of climate change and the increasing storms and rising sea levels that result from this, they face an increasing threat of floods and of rising salt concentrations in their soil. Some islands, they argue, could become uninhabitable if the global temperature rises to levels more than 1.5°C above pre-industrial levels. One of the plaintiffs noted that that his people have lived on the islands in question for over 65,000 years.

The plaintiffs allege that the Australian government owes a duty of care to Torres Strait Islanders. It must, in other words, take reasonable measures to protect them, their environment, their culture and their traditional way of life from the harms caused by climate change. Because current climate action and targets are not consistent with the best available climate science, they argue, this duty of care has been breached. They invoke the Torres Strait Treaty, which requires the Australian government to protect and preserve the marine environment in the region. The plaintiffs seek both mitigation and adaptation measures and rely on the duty of care recognized in the Sharma case.

Full text of the petition:
The full text of the petition is available at climatecasechart.com.

Categories
2021 Domestic court Indigenous peoples' rights Norway Right to culture

Statnett SF et al. v. Sør-Fosen sijte et al.

Summary:
In this judgment of 11 October 2021, the Supreme Court of Norway found that the construction of two wind power plants on the Fosen peninsula interfered with the rights of reindeer herders to enjoy their own culture under Article 27 of the International Covenant on Civil and Political Rights (ICCPR). The Supreme Court unanimously found that there had been an interference with this right, and accordingly invalidated the wind power licence and the expropriation decision.

Facts of the case:
In 2010, two wind power plants (the Roan and Storheia plants) received a license from the Norwegian Water Resources and Energy Directorate. These plants are located within the Fosen grazing district, where the Sør-Fosen sijte and Nord-Fosen siida keep their reindeer. In 2013, the Ministry of Petroleum and Energy rejected their claim that the construction of the wind power plants interfered with their right to cultural enjoyment. Construction on the plants commenced while the issue was pending before the courts, and the two plants – which are part of the largest onshore wind power project in Europe — were ready to become operational in 2019 and 2020, respectively.

Merits:
The main issue at stake before the Supreme Court was whether the development interfered with the reindeer herders’ rights under Article 27 ICCPR. That provision enshrines the right of persons belonging to an ethnic, religious or linguistic minority to enjoy their own culture, in community with the other members of their group. It was undisputed before the Supreme Court that reindeer husbandry is a protected cultural practice. The Supreme Court relied on the Court of Appeal’s finding that the winter pastures near Storheia and Roan had in practice been lost to reindeer husbandry, and that the wind power plants in question are a threat to the reindeer industry’s existence on Fosen peninsula absent remedial measures.    

The Supreme Court, relying on the work of the UN Human Rights Committee, held that the total effect of the development in question determines whether a violation of the ICCPR right has taken place. Although there is no room for a proportionality assessment, a balance must be struck if the rights under Article 27 ICCPR conflict with other fundamental rights. The Supreme Court established that the right to a healthy environment might constitute such a conflicting right.

The Supreme Court found that the herders’ cultural rights would face significant adverse effects and be violated if satisfactory remedial measures were not implemented. The Supreme Court agreed that a “green shift” and increased renewable energy production are important, but found that there were alternatives that were less intrusive for the reindeer herders less, so that there was no collision between environmental interests and the reindeers’ right to cultural enjoyment in this case.   

Remedial awards:
In its ruling, the Court of Appeal had previously stipulated sizeable compensation for the winter feeding of fenced-in reindeer, and on this basis it had found no violation of the right to cultural enjoyment. In the Supreme Court’s view, such a solution was too uncertain to be a determining factor in whether Article 27 ICCPR had been violated. In any event, the courts could not rely on such a measure as a part of the reindeer herders’ duty to adapt.  

Separate opinions:
N/A

Implementation:
N/A

Date of judgment:
11 October 2021

Links:
A summary of the judgment (in English) is available here.

The full text of the judgment (in Norwegian, English translation forthcoming) is available here.

Suggested citation:
Supreme Court of Norway, Statnett SF et al. v. Sør-Fosen sijte, HR-2021-1975-S, Judgment of 11 October 2021.

Categories
Children and young people Domestic court Right to a healthy environment Uganda

Mbabazi and Others v. The Attorney General of Uganda and Others

Summary:
This case was brought by a group of four young people, along with an NGO, alleging that the government of Uganda had breached its duty as a public trustee over natural resources because it had failed to uphold the right to a clean and healthy environment. The case was brought against the Attorney General of the Republic of Uganda and the National Environment Management Authority (NEMA). The plaintiffs brought their case under Articles 29, 50 and 237 of the Ugandan Constitution, along with sections 2, 3, 71 and 106 of the National Environment Act. They brought the case on their own behalf, as well as on behalf of “all children of Uganda born and unborn”, and in the public interest.

Claims:
The plaintiffs argued that the Government of Uganda holds and maintains natural resources for and on behalf of Ugandan citizens under Article 237 of the domestic Constitution, and that it has a duty and obligation to maintain these resources and to ensure their sustainable use. It also has a duty to ensure the sustainable use of resources for present and future generations, including air, water and land. They describe the atmosphere as an ecological asset of the Ugandan people. They invoked Articles 39 and 237 of the domestic Constitution, which imposes a duty on the government to ensure that the atmosphere is free from pollution, and they also argued that the Government has a duty to ensure the integration of environmental concerns into overall national policy-making. The Government had failed to uphold citizens’ right to a clean and healthy environment, and to curb the present and future effects of climate change.

Date filed:
2012

Case status:
Pending

Further reading:
The amended text of the complaint, as submitted in 2015, is available from climatecasechart.com.

Suggested citation:
High Court of Uganda, Mbabazi and Others v. The Attorney General and National Environmental Management Authority, Civil Suit No. 283 of 2012

Categories
Business responsibility Children and young people Domestic court Emissions reductions Evidence Right to a healthy environment Right to health South Africa

South African ‘Deadly Air Case’

Summary:
This case concerns toxic air pollution in the Mpumalanga Highveld, which is home to a dozen coal-fired power plants, a coal-to-liquids plant and a refinery. The case was brought by two environmental organisations – groundWork and Vukani Environmental Justice Movement in Action – represented by the Centre for Environmental Rights.

The applicants have petitioned the court to declare the unsafe levels of air pollution to be a violation of section 24a of the South African Constitution, which provides that “everyone has the right to an environment not harmful to their health or wellbeing”. 

The outcome of the case is currently pending before the Pretoria High Court, and Judge Colleen Collins has reserved judgment.

Claims:
The applicants’ complaints concern exposure to toxic chemicals emitted by the coal plants. This includes sulphur dioxide, heavy metals like mercury, and fine particulate matter. According to the applicants, the coal plants are responsible for the majority of these emissions, which are causing chronic respiratory illnesses such as asthma and lung cancer, and which also increase the risk of strokes, heart attacks, birth defects and premature deaths. 

The area in question has been recognized as a hotspot of pollution in excess of permissible levels. It has been claimed that this pollution is responsible for up to 10,000 excess deaths per year. But the Government has pointed to the existence of clean air regulations, and argued that there is no scientific evidence proving the link between the air pollution and the harms allegedly suffered by any particular individual. It has also highlighted the need to realize the right to a healthy environment progressively.

Amicus curia intervention by the UNSR:
David R. Boyd, the United Nations special rapporteur on human rights and the environment, intervened as an amicus curiae in this case. He argued that poor and marginalised people disproportionately carry the burden of toxic air pollution. It has been reported that Boyd’s arguments include consideration for the vulnerability of children to environmental threats.

Deciding body:
Pretoria High Court

Admissibility:
TBD

Merits:
TBD

Remedies and outcomes:
TBD

Further reading:
For more information from the Centre for Environmental Resources, click here.

Suggested citation:
South African ‘Deadly Air’ case, Pretoria High Court, hearings held on 17-19 May 2021.

Categories
Domestic court Emissions reductions European Convention on Human Rights Italy Paris Agreement Right to a healthy environment

Giudizio Universale (The Last Judgment) (A Sud v. Italy)

Summary:
In June 2021, the Giudizio Universale (The Last Judgment) campaign, coordinated by the environmental justice NGO A Sud, filed a suit before domestic courts in Italy. The suit, which involves more than 200 plaintiffs, alleges that the Italian government has violated fundamental rights due to its failure to take appropriate measures to meet the emissions reductions targets in the Paris Climate Agreement. violating fundamental rights, including the right to a stable and safe climate. The plaintiffs seek an order that the Italian government must cut emissions by 92% by 2030 as compared to 1990 levels. The applicants argue that although some emissions reductions have been achieved since 1990, these amount to only about a 29% reduction as compared to 1990 levels. The applicants submit that this level of reduction is incompatible with the ‘fair share’ of emissions reductions that Italy must implement to meet the 1.5°C target of the Paris Agreement.

Among other rights, the applicants invoke the human right to a stable and safe climate. In their submissions, they base this right on Article 6 of the Treaty of the European Union as well as Articles 2 (right to life) and 8 (right to respect for private and family life) of the European Convention on Human Rights. Although there is no explicit right to a healthy environment in the ECHR, the European Court of Human Rights has an extensive environmental jurisprudence, having decided more than 300 cases with an environmental connection.

Date filed:
5 June 2021

Jurisdiction:
Civil Court of Rome

Further reading:
A summary of the legal action is available here (in Italian).

An English-language summary has been provided here.

Categories
Business responsibility Children and young people Domestic court Emissions reductions Extreme poverty Indigenous peoples' rights Right to a healthy environment Right to health Right to housing Right to life Right to subsistence/food Right to water Self-determination The Philippines Vulnerability

Greenpeace Southeast Asia and others v. the Carbon Majors

Summary:
This case was brought before the Philippines’ Commission on Human Rights (CHR) by 12 organisations and 20 individuals, as well as over a thousand Filipino citizens who expressed their support for the case through a petition, against the so-called ‘carbon majors’, i.e. high-emitting multinational and state-owned producers of natural gas, crude oil, coal and cement. The applicants based their case on research indicating that these Carbon Majors are responsible for a large percentage of global greenhouse gas emissions. Citing the Philippines’ high degree of vulnerability to the effects of climate change, the applicants alleged violations of the rights to life, health, food, water, sanitation, adequate housing, and self-determination. They also specifically invoked the rights of vulnerable groups, peoples and communities, including women, children, people living with disabilities, those living in extreme poverty, indigenous peoples, and displaced persons. They invoked also the right to development, labor rights, and the right to ‘a balanced and healthful ecology’. This petition was brought after a number particularly destructive typhoons that affected the Philippines, including Typhoon Haiyan.

As a result of the petition, the CHR began a dialogical and consultative process, called the National Inquiry on Climate Change (NICC). This process aims to determine the impact of climate change on the human rights of the Filipino people, as well as determining whether the Carbon Majors are responsible for climate change.

Responsible instance:
The case was brought before the Philippines’ Commission on Human Rights, which is an independent National Human Rights Institution (NHRI) under the 1987 Philippine Constitution, established on 5 May 1987 by Executive Order No. 163.

Date filed:
22 September 2015

Procedural steps in the case:
On 10 December 2015, the Commission announced during the Paris Climate Change Conference that it would take cognizance of the case.

On 21 July 2016, the Commission enjoined the respondent Carbon Majors to file their comments or answers to the petition within forty-five days. Out of the 47 respondents summoned, 15 submitted a response. Thirteen amicus curiae briefs were received. The applicants filed a reply, to which seven of the carbon majors filed a rejoinder.

Beginning July and November 2017, the Commission conducted community visits and dialogues to select climate impacted areas.

On 11 December 2017, the parties held a first preliminary conference. The Commission used this opportunity to deny the respondents’ jurisdictional objections to the case. It asserted its authority to investigate the case and hold public hearings in 2018 in Manila, New York, and London.

In 2018, the Commission held six public hearings in the case.

Outcome of the NICC:
TBC

Suggested citation:
Philippines Human Rights Commission, In Re: National Inquiry on the Impact of Climate Change on the Human Rights of the Filipino People and the Responsibility therefor, if any, of the ‘Carbon Majors’, case nr. CHR-NI-2016-0001, petition filed on 22 September 2015.

Further information:
The full text of the petition is available here.

For additional resources provided by the Commission, such as transcripts of hearings and evidence submitted, click here.

Categories
2021 Children and young people Domestic court Emissions reductions Human dignity Right to a healthy environment Right to health United States of America

Held and Others v. Montana

Summary:
In Held and Others, sixteen young plaintiffs — aged between two and eighteen — brought a case against the U.S. state of Montana alleging violations of the state constitution due to climate change. The young plaintiffs in this case, which is to some extent comparable to the Juliana litigation, alleged that they are already experiencing ‘a host of adverse consequences’ from anthropogenic climate change in Montana, including increased temperatures, changing weather patterns, more acute droughts and extreme weather events, increasing wildfires and glacial melt. They argued that this was causing health risks, especially for children, and that the defendants, among them the state of Montana, its Governor, and various state agencies, had “act[ed] affirmatively to exacerbate the climate crisis” despite their awareness of the risk of harm to the applicants. The plaintiffs sought a declaration that their right to a clean and healthy environment includes a right a stable climate, and that existing approaches to greenhouse gas emissions in Montana violate constitutional provisions, including the right to a clean and healthy environment; the right to seek safety, health, and happiness; and the right to individual dignity and to equal protection. They also sought injunctive relief, namely an order to account for the state’s Montana’s greenhouse gas emissions and to develop and implement an emissions reductions plan.

Decision on the admissibility:
On 4 August 2021, a the Montana First Judicial District Court for Lewis and Clark County declared the case admissible in part. The prayer for injunctive relief in terms of emissions accounting, a remedial plan or policy, the appointment of expert to assist the court, and retain jurisdiction until such orders are complied with were rejected. However, the court declared the constitutional rights claims admissible, including the claim about the plaintiffs’ ‘fundamental constitutional right to a clean and healthful environment’, which — as the plaintiffs submit — ‘includes a stable climate system that sustains human lives and liberties’.

Date filed:
13 March 2020

Date of admissibility decision:
4 August 2021

More information:
The original complaint is available from the Western Environmental Law Center.
The admissibility decision is available over on climatecasechart.com.

Suggested citation:
Montana First District Court for Lewis and Clark county, Held and others v. State of Montana and others, order on motion to dismiss, 4 August 2021, Cause No. CDV-2020-307.

Categories
Children and young people Domestic court Emissions reductions Pakistan Right to a healthy environment

Ali v. Pakistan

Summary:
This 2016 petition was brought against Pakistan in the name of a seven-year-old girl from Karachi, and challenges actions and inactions on the part of the federal and provincial government relating to climate change. The case is still pending.

Facts and claims made:
The petition, which is available on Climate Case Chart, was filed directly with the Supreme Court of Pakistan in Islamabad, and it alleges violations of constitutional rights, of the public trust doctrine, and of environmental rights. It challenges the environmental harms that are expected to result from the policy of burning coal to obtain electricity. The application challenges a plan to develop coal fields, which would massively increase Pakistani coal production and would displace local residents and degrade the local environment. The plan is linked to investments stemming from the China-Pakistan Economic Corridor, which supports coal field development and new coal-fired power plants in Pakistan.

Suggested case citation:
The Supreme Court of Pakistan, Ali v. Pakistan, petition filed on 1 April 2016