Category: Domestic court

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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
    Belgium Business responsibility / corporate cases Domestic court Farming Fossil fuel extraction Private and family life Right to life

    Falys et al. v. TotalEnergies (‘The Farmer Case’)

    Summary:

    In March 2024, Hugues Falys, a farmer located in Belgium, filed a legal action at the Commercial Court of Tournai (Belgium) against TotalEnergies. He was joined by Ligue des Droits Humains, Greenpeace Belgium and FIAN Belgium.

    The objective of the legal action is to claim compensation for damages suffered by Falys as a result of climate breakdown, and to force TotalEnergies to move away from fossil fuels. The civil liability action is based on articles 1382 and 1383 of the former Belgian Civil Code. In their submissions to the court, the plaintiffs have put forward human rights arguments as one line of interpretation of the relevant provisions, inter alia referring the ECtHR’s judgment in Klimaseniorinnen multiple times.

    Relevant developments:

    On March 18, the Commercial Court of Tournai found the action to be admissible, thereby recognising that carbon majors can be held accountable in Belgium for causing climate change even if their headquarters is in another state. With regards to the merits of the case, the Court postponed its judgment to 9 September 2026 to await the decision in a similar case against TotalEnergies in France.

    See also:

    Notre Affaire à Tous and Others v. Total.

    Verein KlimaSeniorinnen et al. v. Switzerland.

    Links:

    For the main conclusions of the plaintiffs (in French), see here.

    For an unofficial translation of the main conclusions of the plaintiffs (in English), see here.

    For the Court’s admissibility judgment of 18 March 2026 (in French), see here.

    Last updated:

    20 March 2026.

    Categories
    Domestic court Fossil fuel extraction Norway Paris Agreement

    Greenpeace Nordic and Finnish Association for Nature Conservation v. Finland

    Summary:
    On 18 February 2026, a climate case was filed against the government of Finland challenging its 2025 climate action plan in light of alleged failures to present an adequate emissions reductions pathway in line with its 2035 net neutrality target. The plaintiffs, NGOs Greenpeace Finland and Finnish Association for Nature Conservation, sought judicial review by the Finnish Supreme Administrative Court of the government’s plans for implementing climate targets under the 2022 Climate Act. These plans are detailed in the Government Report on the National Energy and Climate Strategy and Medium-Term Climate Plan, both of which were issued in December 2025. The plaintiffs argue that the measures envisaged by the government are insufficient to achieve the targets set out in the Climate Act, and alternative pathways towards the achievement of the targets have not been assessed, and thus the government is in breach of its statutory duty.    

    Invoking the Verein KlimaSeniorinnen & Others v. Switzerland judgment by the European Court of Human Rights, as well as the climate advisory opinion of the International Court of Justice, the plaintiffs allege that the shortcomings of the plan are unlawful, do not take into account the best available science and rely excessively on technological methods of removing greenhouse gases from the atmosphere, without adequately protecting carbon sinks. The current climate plan was published in December 2025, and is required under the Finnish Climate Act to present different options for how emissions and carbon sinks will develop over the next 30 years, as well as sector-specific measures.

    The plaintiffs have approached the highest administrative court in Finland directly (rather than via the appellate route), arguing that the impugned government decisions implicate civil rights and obligations as interpreted by the European Court of Human Rights in the Verein KlimaSeniorinnen & Others v. Switzerland judgment.

    Further information:
    A press release on the case is available here; the present summary will be updated once more information becomes available.

    Suggested citation:
    Finnish Supreme Administrative Court, Greenpeace Nordic and Finnish Association for Nature Conservation v. Finland, case filed on 18 February 2026 (pending).

    Last updated:
    13 March 2026.

    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
    2026 Children and young people Emissions reductions/mitigation European Convention on Human Rights Non-discrimination Right to health Standing/admissibility Sweden Uncategorized

    Aurora v. Sweden (Aurora Case II)

    Summary

    On 06 February 2026, the youth-led association Aurora launched a climate lawsuit before the Nacka District Court against the government of Sweden alleging a violation of their rights to life, health and well-being as well as the prohibition of discrimination (based on age). The case is a follow-up to Anton Folley and Others v. Sweden (Aurora Case). That case was a class action suit brought by over 600 young individuals (supported by Aurora), which the Supreme Court of Sweden dismissed as inadmissible on the ground that the plaintiffs did not meet the high threshold for individual victim status articulated by the European Court of Human Rights in the Verein KlimaSeniorinnen et al. v. Switzerland judgment.

    Relying upon the criteria for ‘victim status’ and the standing of associations to litigate climate cases laid down in Verein KlimaSeniorinnen, Aurora argues that this fresh case is admissible and that the district court may proceed to examining the substantive claims.

    Claims:

    The substantive claims in Aurora II are largely the same as the claims which were made in the Aurora case, with the new petition drawing upon more recent climate jurisprudence, including the ICJ’s Advisory Opinion on the Obligations of States in respect of Climate Change to support its case. In the petition, Aurora identifies a lack of measures or intermediate emission reduction targets envisaged for the period after 2030, and problematizes Sweden’s emissions debt (i.e. the exceedance of its national fair share of the global carbon budget) as failures to exercise due diligence in the discharge of positive obligation to protect individuals who Aurora represents from serious threats to the enjoyment of their rights. The petition also invokes the findings of the IPCC to argue that children and youth, who Aurora represents (majority born between 1998 and 2026), are at a particular risk from climate change, in order to demonstrate the disparate impact of Sweden’s failure to effectively contribute towards climate mitigation. The petition requests the court to handle the case with urgency, to declare violations of Articles 2, 8 and 14 and an order the government to pay legal costs incurred by the plaintiffs.

    Links

    • For the petition (in Swedish) filed by Aurora, see here.
    • For the press release by Aurora announcing the case, see here.

    Status

    Pending

    Suggested citation:

    Nacka District Court, Aurora v. Sweden, filed on 6 February 2026 (pending).

    Last updated:

    11 February 2026

    • Tags
    Categories
    2026 Blog Class action Emissions reductions/mitigation European Convention on Human Rights Private and family life The Netherlands

    Bonaire Climate Case: Creative or Questionable Interpretation of International Climate Law?

    Pranav Ganesan, PhD Candidate at the University of Zurich

    The Greenpeace Netherlands v. State of the Netherlands(Bonaire) judgment of the Hague District Court has stolen the limelight as the new posterchild for strategic climate litigation. The plaintiff in this case, Greenpeace Netherlands, argued that the Dutch government failed in its duty to protect the residents of Bonaire, an island in the Caribbean which formally attained the status of a special municipality of the Netherlands in 2010. Although it is a special municipality (bijzondere gemeente), it is just as much a part of the Netherlands as any other province in the European Netherlands. The Dutch government owes obligations under international human rights law, including those arising from the European Convention on Human Rights (ECHR), towards residents of the municipality. That international human rights law requires states to undertake climate mitigation measures and adaptation measures, as informed by international climate change law where relevant, has been affirmatively held in two advisory opinions from international courts and the European Court of Human Rights. And the proposition that the Dutch government’s duty of care towards its population essentially includes obligations under the ECHR was confirmed by the Supreme Court of the Netherlands in Urgenda. Thus, it comes as no surprise that in material respects, the Hague District Court’s reasoning was so heavily based on international law.[1] In terms of the scope of state conduct implicated in this case, it outdoes the Urgenda case,which only concerned contributions to the mitigation of climate change. The Hague District Court agreed with the plaintiff that the Dutch government had violated Article 8 ECHR as well as the prohibition of discrimination (Art. 14 ECHR and Art. 1 of Protocol No. 12 to the ECHR), the former due to inadequate mitigation measures, inadequate implementation of those measures, delays in adopting an adaptation plan for Bonaire and late provision of procedural safeguards to the residents of Bonaire. In this blog, I provide a quick analysis of the District Court’s engagement with the UN Framework Convention on Climate Change and Paris Agreement in the section on mitigation measures. Readers interested in learning about the adaptation component and how the court addressed discrimination claim are welcome to read this blogpost by Wewerinke-Singh.

    There are areas in the judgment where the District Court’s assessment of the compatibility of the Dutch Climate law framework with international climate law is questionable. The first glaring issue is that the court made a finding of non-compliance with Article 4(4) of the Paris Agreement based on the absence of ‘absolute emissions reduction targets’ in the Dutch Climate Act of 2019 (para 11.13.1). The problem identified by the court was that the targets were expressed as goals that the government would ‘strive to achieve.’ However, this does not mean that the targets are not absolute. The difference between absolute and relative emissions reductions targets being whether they are expressed as percentage reductions in comparison to the emissions during a fixed baseline year, as opposed to reductions from a business as usual scenario in case of relative targets (Winkler et al 2014, 636). The use of the expression ‘strive to achieve’ means that the nature of the obligation to achieve the target is one of conduct rather than result, reflecting the nature of the obligation to pursue domestic mitigation measures in pursuance of NDCs communicated under Article 4(2) of the Paris Agreement (ICJ Advisory Opinion, paras 251-253). Another connected example is the court’s declaration that ‘UN standards’ require emission reduction targets to be expressed as percentage reductions to be achieved by the target date, in comparison to 2019 levels as opposed to the 1990 baseline (para 11.13.2). Moreover, strictly speaking, Article 12(8) of the UNFCCC does not require the EU to provide information about each member state’s national carbon budget like the court suggests (para 11.15.3). The court’s interpretation of these treaty provisions might be technically imprecise, but it is undoubtedly bold, being based on the need for exemplary efforts from a developed country like the Netherlands, and reflecting the appropriate sense of urgency in light of the results of the First Global Stocktake (para 11.9.4). Through its interpretive moves, the court effectively hardened ‘soft’ obligations (i.e. normative expectations) sourced from the Paris Agreement and COP decisions (on hard and soft obligations in the Paris Agreement, see Rajamani, 2016).

    A final noteworthy aspect of the judgment is the rather detailed response to how the notion of ‘equity’ in Article 3(1) of the UNFCCC and Articles 2(1) and 4(1) of the Paris Agreement is to be applied in reviewing states’ mitigation commitments. Equity is an elusive concept, with debates on what an equitable distribution of the global emissions reduction burden entails having remained unsettled since the inception of international negotiations on the topic of climate mitigation (Oliver Herrera et al, 2025). The court provided the (un)acceptability of a ‘grandfathering approach’ as an example of one such debate (para 11.13.5). But it did not go so far as to hold that the grandfathering approach is legally impermissible because it is inequitable per se, or that an equal per capita emissions approach is the minimum standard under international law. Rather, it assessed the Netherlands’ policy negatively on account of its failure to justify why its current policy, which is based on the controversial grandfathering principle and falls short of the ambition required by the equal per capita emissions approach, is equitable in accordance with Article 3(1) of the UNFCCC and Article 4(1). It thus did not use equity to dictate the outcome of what exactly the Dutch government’s fair share of the global carbon emissions ought to be. At same time, it did not use the underlying controversy as a reason to entirely avoid reviewing the substance of the Dutch climate mitigation policy. This is underscored by its remedial findings, wherein the court declared that the Netherlands’ current mitigation commitments were inequitable, thereby leading to a breach of Article 8 (para 12.1), but dismissed Greenpeace’s request ordering the adoption of specific emissions reduction targets by the government, or at least a carbon budget reflecting the ‘equal per capita emissions approach’ (paras 8.1 (IV)-(VI), 11.55 and 11.58).

    Overall, the Bonaire judgment shows how climate litigation can lead to precarious precedents. On the one hand, the way the Court engaged with the concept of equity provided an assessment of Dutch mitigation ambition which was notably pragmatic and might serve as inspiration for other courts when asked to answer the fair share question. On the other hand, the judgment risks signaling to states that legal texts—which negotiators toiled to craft in ‘constructively ambiguous’ terms—may be stretched by domestic courts to uncomfortable extents. Ultimately, the appellate court’s scrutiny of this case (should the Dutch government file an appeal) will reveal how this judgment will be remembered: whether it will be hailed for its boldness or criticized for its questionable interpretation of international treaties.

    [1] André Nollkaemper commented: ‘Today’s judgment of the District Court of The Hague fully lives up to the reputation of Dutch courts as strongly international law-minded. […] The conclusion is firmly anchored in international law. With 29 references to the ICJ Advisory Opinion on Climate Change, 64 references to the European Court’s KlimaSeniorinnen judgment, 64 to the UNFCCC, 62 to the Paris Agreement, and 12 to COP decisions, this surely ranks high on the list of climate change cases that are most shaped by international law.’

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    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
    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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