Category: Domestic court

Categories
Austria Domestic court Emissions reductions/mitigation European Convention on Human Rights Farming Fossil fuel extraction Imminent risk Margin of appreciation Right to life

Jasansky and Others v. Austria

Summary:
On 10 November 2023, it was reported that a climate-related application had been filed with the European Court of Human Rights (ECtHR) against Austria. The case is brought on behalf of four Austrian nationals — Monika Jasansky, Peter Fliegenschnee, Friedrich Pichler, and Klara Butz –along with the NGO Global 2000.

The application contests Austrian inaction in terms of mitigation measures, and argues that the individual applicants — who have been described, respectively, as an organic farmer, a retiree, a mayor, and a climate activist — have been adversely affected by extreme weather events aggravated by climate change, namely droughts, heatwaves and mudslides. The applicants allege a violation of the State’s positive obligation to protect the right to life in Article 2 of the European Convention on Human Rights.

Domestic proceedings:
The applicants contest a finding from the Austrian Constitutional Court, made in July 2023, which recognized the state’s duty to actively take effective measures to protect life and health as well as to protect private life and property, but accorded the government a wide margin of discretion and found that fundamental and human rights do not allow for claims to a specific measure (here the applicants petitioned the domestic courts to order legislators to set binding expiry dates for the permissibility of the sale of fossil fuels in 2040). Rather, the domestic court found that the legislature must be allowed to choose between the various available measures to meet the State’s protective obligations.

Suggested citation:
European Court of Human Rights, Jasansky and Others v. Austria, pending case, filed November 2023.

Categories
Adaptation Climate-induced displacement Domestic court Indigenous peoples' rights Kenya Loss & damage Non-discrimination Right to life Right to property

Legal Advice Centre T/A Kituo cha Sheria & Anor v. Attorney General and 7 Others (Iten ELC Petition No. 007 of 2022)

Summary:
In 2022, a case was filed in Kenya on behalf of members of indigenous Ilchamus and Tugen communities living on the shores of Lake Baringo. Due to flooding, Lake Baringo has doubled in size since 2010. The plaintiffs assert that, as residents of the area, they are victims of climate change-related flooding, which in turn has caused displacement, deaths and harm to property. The petitioners allege violations of their constitutional human rights as well as violations of the Kenyan government’s duties under the domestic Climate Change Act. Drawing on a 2021 government report that identified climate change as the main cause of flooding in the area, the plaintiffs seek to — in the words of their lead attorney, Omondi Owino, “enforce the climate change duties of public officials”.

The petitioners’ motion for the Supreme Court of Kenya to create a three-judge Environment and Land Court (ELC) panel to hear the case was allowed. A hearing in the case — which alleges that government officials “failed, refused, or neglected” to “anticipate, prevent, or minimize” the impacts of climate change — was held on 24 October 2023 at the ELC in Iten. Government lawyers have reportedly contested the claims and the plaintiffs’ claims for damages, arguing that Kenya’s contribution to global climate change is minimal.

Suggested citation:
Environment and Land Court (ELC) of Iten, Legal Advice Centre T/A Kituo cha Sheria & Anor v. Attorney General and 7 Others, Petition No. 007 of 2022.

Categories
Adaptation Domestic court European Convention on Human Rights Imminent risk Non-discrimination Private and family life Right to housing Right to life Right to property Sea-level rise The United Kingdom Vulnerability

R (Friends of the Earth Ltd, Kevin Jordan and Doug Paulley) v. Secretary of State for Environment, Road & Rural Affairs

Summary:
On 17 October 2023, the reportedly first-ever domestic adaptation case was brought against the United Kingdom before its High Court of Justice. The plaintiffs in this pending case include Kevin Jordan, a homeowner from Norfolk (UK), who alleges that his home is acutely threatened by coastal erosion, with the road leading up to it having already collapsed into the sea. Jordan has brought his case together with the NGO Friends of the Earth and disability rights activist Doug Paulley, a care home resident who alleges that his health conditions are being exacerbated by climate-aggravated heatwaves. Together, the plaintiffs challenge the UK’s National Adaptation Programme (NAP). Domestic law requires the production of new NAP every five years, and the most recent version — NAP3 — was published in July 2023. The claimants argue that NAP3 is deficient for the following reasons:

  1. Failure to set sufficiently specific objectives;
  2. Failure to conduct and publish information on the assessment of the risks involved in implementing NAP3;
  3. Failure to consider the unequal impacts of NAP3 on protected groups (on the grounds of age, race and disability); and
  4. Violation of Articles 2, 8, 14 and Article 1 of Protocol 1 of the European Convention on Human Rights (the rights to life, respect for private and family life, non-discrimination and property, respectively), as enshrined in the Human Rights Act 1998.

In regards to the alleged human rights violations, the plaintiffs invoke:

a. The well-established but urgent need for long-term policy and protected funding to enable care-homes (and similar healthcare settings) to adapt to excessive heat. This remains absent in NAP3 despite the increasing frequency and severity of annual heatwaves.
b. There being no new policy to manage overheating risks in existing health and social care buildings, such that they are properly refurbished as soon as reasonably practicable.
c. A lack of a commitment to provide adequate resources to support communities at imminent risk of being lost to erosion and flooding, including as to the established mental health and emotional wellbeing impacts for those affected.
d. Gaps, inconsistency and uncertainty in the potential allocation of funding provided for a range of areas, in particular for those communities that must (or are likely to have to) relocate and have their homes demolished.
e. There being no insurance or compensation schemes available for the worst affected by coastal erosion and who lose their homes.
f. No evidence of their being an express consideration, or reasoned analysis, of what a fair balance to strike would be between doing more to safeguard the human rights of vulnerable people and the interests of wider society.

https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2023/20231101_21608_complaint.pdf (emphasis added)

More information:
See the press release here, and the information document obtained by ClimateCaseChart here.

For reporting on the case, see the Guardian.

Suggested citation:
High Court of Justice for England and Wales, R (Friends of the Earth Ltd, Kevin Jordan and Doug Paulley) v. Secretary of State for Environment, Road & Rural Affairs, filed on 17 October 2023.

Categories
Climate activists and human rights defenders Domestic court Emissions reductions/mitigation European Convention on Human Rights Non-discrimination Paris Agreement Right to a healthy environment Right to culture Right to education Right to health Right to life Right to subsistence/food Right to water Self-determination Turkey Uncategorized

A.S. & S.A. & E.N.B v. Presidency of Türkiye & The Ministry of Environment, Urbanization and Climate Change

Summary:

On 13 April 2023, Türkiye submitted its updated Nationally Determined Contribution (NDC) to the Secretariat of the United Nations Framework Convention on Climate Change (UNFCCC). The NDC states that Türkiye aims to reduce its CO2 emissions by 41% by 2030 compared to the business-as-usual scenario with 2012 as its base year, and plans on peaking emissions by 2038 at the latest. This would increase CO2 emissions by 30% until 2030. Due to this further increase in CO2 emissions, climate activists Atlas Sarrafoğlu, Ela Naz Birdal and Seren Anaçoğlu filed a lawsuit against President Recep Tayyip Erdoğan and the Ministry of Environment, Urbanization and Climate Change before the Council of State (the highest administrative court in Türkiye) on 8 May 2023.

The plaintiffs claimed that Türkiye’s NDC is inadequate under the Paris Agreement and that the resulting increase in CO2 emissions violates their human rights under the country’s constitution, the United Nations Convention on the Rights of the Child, and the European Convention on Human Rights. The rights they claimed had been violated included: the right to life, the right to intergenerational equality, the right to the protection of one’s private life, the right to health, cultural rights, the right to develop one’s material and spiritual existence, the right to live in a healthy and balanced environment, the right to education, the right to work, and the right to healthy food and water. Because of the alleged inadequacy of the NDC under the Paris Agreement, they demanded its annulment and the creation of a more ambitious commitment.

Status of Case:

On 22 December 2023, The Wave reported that the Council of State had dismissed this case without examining it, arguing that the NDC did not constitute an administrative act and was accordingly not open to judicial annulment.

Further reading:

News Article by PAMACC: https://www.pamacc.org/index.php/k2-listing/item/1440-president-recep-erdogan-of-turkey-sued-for-slow-implementiion-of-the-paris-agreement

News Article by the Turkish human rights press agency “Bianet”: https://bianet.org/haber/young-climate-activists-file-lawsuit-against-erdogan-over-inadequate-emission-goals-278474

Date last updated:

22 December 2023.

Categories
Argentina Climate activists and human rights defenders Domestic court Paris Agreement Right to a healthy environment Right to health Uncategorized

Hahn et al. v APR Energy S.R.L.

Summary:

The legal action centred on the construction and operation of Matheu II and Matheu III, thermoelectric power plants in Pilar, Argentina. The plaintiffs, comprising a coalition of individuals and non-governmental organizations, argued that these projects lacked the necessary environmental assessments and contended that relying on fossil fuels for power generation ran contrary to international agreements such as the American Convention on Human Rights, the Paris Agreement, the Kyoto Protocol, and the International Covenant on Economic, Social and Cultural Rights, among others. Initially, the Federal Court of Campana granted precautionary measures to halt construction, citing environmental and procedural concerns, safeguarding collective interests, and mitigating potential harm. However, in December 2022, they allowed limited operation of Matheu III, considering global energy challenges. In June 2023, the court denied an extension for Matheu III, citing noise pollution concerns raised by the Municipality of Pilar and emphasizing the need to balance energy production with local environmental well-being.

Claim:

The legal action was undertaken with the primary objective of preventing the construction and operation of the thermoelectric power stations Matheu II and Matheu III. The plaintiffs asserted that these plants had initiated construction without fulfilling the proper environmental assessment. Furthermore, they argued that the use of fossil fuels in power generation was in violation of international human rights treaties, climate agreements, and domestic regulations. They asserted that the operation of these power plants posed a significant threat to the environment, public health, and the fundamental human right to enjoy a healthy and balanced environment.

Decision:

Initially, the Federal Court of Campana ruled in favor of the plaintiffs by issuing precautionary measures that temporarily halted the construction and operation of the power plants. These measures were based on environmental and procedural considerations, as well as protecting collective interests and preventing potential harm, as stipulated in domestic law. However, the court’s decisions did not explicitly address the issue of climate impact.

Subsequently, Araucaria, one of the plant operators, secured a partial adjustment to the precautionary measures in December 2022. This modification permitted the temporary and limited operation of Matheu III, partially due to concerns stemming from the global energy crisis and the resultant surge in energy prices, driven in part by geopolitical events like the Russian invasion of Ukraine.

However, in June 2023, the Federal Court of Campana chose not to extend the authorization for the partial operation of Matheu III. The decision was prompted by concerns raised by the Municipality of Pilar regarding noise pollution. This ruling reflects the court’s consideration of local environmental and public health concerns, highlighting the importance of balancing energy production with environmental and societal well-being.

Links:

The case documents are accessible via Climate Case Chart: Click here.

Status of the case:

The case is currently pending before the Federal Court of Campana.

Suggested citation:

Hahn et al. v. APR Energy S.R.L (Juvevir Asociación Civil v. APR Energy and Araucaria Energy) (Federal Court of Campagna, Argentina), Case No: FSM 116712/2017

Last updated:

03 November 2023.

Categories
2021 Climate-induced displacement Domestic court Human dignity Italy Non-refoulement Right to life

I.L. v. Italian Ministry of the Interior and Attorney General at the Court of Appeal of Ancon

Summary:

In the case of I.L. v. Italian Ministry of the Interior and the Attorney General at the Court of Appeal of Ancona, decided on 24 February 2021 by the Supreme Court of Cassation in Italy, a significant precedent was established in humanitarian asylum cases. The decision mandated that Italian trial judges should collectively assess situations of environmental, social, or climate degradation when evaluating eligibility for humanitarian protection, in addition to considering situations of armed conflict. The case involved a Nigerian citizen, I.L., who sought refuge in Italy, primarily due to armed paramilitary conflict in the Niger Delta region that was being exacerbated by environmental degradation, particularly numerous oil spills.

Claim:

The applicant claimed that the lower courts committed a prejudicial error by not taking into account the environmental disaster situation in the Niger Delta as a basis for humanitarian protection. He argued that the trial judge’s decision violated Legislative Decree No. 286/1998, known as the Consolidated Immigration Act, by failing to extend humanitarian protection based on the environmental disaster in his home region. The central issue at hand was to ascertain whether individuals facing a real threat to their right to life in their country of origin, due to adverse social, environmental, and climate circumstances rather than armed conflict, should be granted humanitarian protection.

Decision:

The Supreme Court of Cassation accepted the applicant’s appeal and remanded the case back to the Court of Ancona. The Court found that the applicant’s two grounds for appeal were well-founded. It recognized the existence of severe environmental instability in the Niger Delta, resulting from indiscriminate exploitation by oil companies and ethnic-political conflicts. The trial judge’s failure to consider the environmental context and widespread insecurity when assessing humanitarian protection eligibility was seen as an error.

The Court’s decision drew on international legal precedent, including the Teitiota decision from the United Nations Human Rights Committee, which recognized that environmental degradation could hinder the right to life when a state is unable or unwilling to ensure ‘access to essential natural resources, such as arable land and drinking water’. The Court’s key findings and instructions are as follows:

  1. When assessing humanitarian protection, the evaluation of widespread dangerous conditions in the applicant’s country of origin should consider specific risks to the right to life and dignified existence arising from environmental degradation, climate change, or unsustainable development of the area.
  2. Danger to an individual’s life can depend on socio-environmental conditions, not solely armed conflict. Such socio-environmental factors include human action that seriously jeopardizes an individual’s survival and that of their relatives.
  3. Trial judges are instructed to establish an ‘essential level’ below which decent living conditions are not present and the fundamental right to life is not ensured. The judge must then verify the effective assurance of this minimum threshold, which should encompass both armed conflict and other circumstances that pose a serious risk to the individual and their family’s survival, such as social, environmental, or climatic degradation or unsustainable exploitation of natural resources.
  4. The Court determined that if the situation in the country of origin does not allow for a minimum guarantee of the right to life, humanitarian protection should be granted. Importantly, this assessment now includes environmental and climatic factors influencing an individual’s decision to leave their home.

Links:

The case documents are accessible via Climate Case Chart: Click here.

Status of the case:

Judgment of the Supreme Court of Cassation – Second Civil Section 

Suggested citation:

I.L. v. Italian Ministry of the Interior and Attorney General at the Court of Appeal of Ancona, Supreme Court of Cassation, N. 5022/2021, 24 February 2021.

Last updated:

03 November 2023.

Categories
Domestic court Emissions reductions/mitigation European Convention on Human Rights Paris Agreement Private and family life Right to a healthy environment Right to health Right to life Right to property Romania

Declic et al. v. The Romanian Government

Summary:

In January 2023, Declic (a prominent Romanian NGO) alongside a number of individuals initiated Romania’s first-ever climate lawsuit against the government, specifically targeting Prime Minister Nicoale Ciucă and the Ministers of Environment and Energy. The lawsuit alleges that the government has failed to implement adequate measures to address and mitigate the foreseeable risks associated with the climate crisis, violating its legal obligations under the Paris Agreement. The plaintiffs are seeking fines for each day of government inaction and demanding a court order mandating immediate and comprehensive actions to reduce greenhouse gas emissions by 55% by 2030 compared to 1990 levels, achieve climate neutrality by 2050, and increase the share of renewable energy in final energy consumption to 45% while improving energy efficiency by 13% by 2030.

Claim:

The plaintiffs assert that the government is in breach of its duty of care by applying insufficient greenhouse gas reduction targets for 2030, falling well below the EU-wide reduction goal of 55% below 1990 levels. They argue that the absence of annual carbon budgets and mechanisms for monitoring and reporting progress towards climate goals hinders the meaningful assessment of the government’s measures to limit global warming to 1.5 degrees Celsius. Furthermore, the lawsuit questions whether the measures taken by the government are sufficient to prevent climate change from becoming dangerous to humanity and the environment, considering the discretionary power of the government. The plaintiffs also challenge whether the government’s climate mitigation and adaptation measures meet objective standards and pass reasonableness tests set by international bodies like the UN Committee on Economic, Social and Cultural Rights. Finally, the court is called upon to determine whether the government’s measures are compatible with the rights and freedoms guaranteed by the Romanian Constitution and the European Convention on Human Rights, including the right to life, privacy, property, health, and a healthy and ecologic environment.

Links:

The case documents are accessible via Climate Case Chart: Click here.

Status of the case:

The case is currently pending before the Cluj Court of Appeal of Romania.

Suggested citation:

Declic et al. v. The Romanian Government (Cluj Court of Appeal, Romania, filed January 2023).

Last updated:

03 November 2023.

Categories
2017 Children and young people Domestic court Emissions reductions/mitigation Non-discrimination Right to a healthy environment Right to health Right to life Right to property Right to subsistence/food Right to water Rights at stake The Philippines Uncategorized

Segovia et al. v. Climate Change Commission

Summary:

In 2017, a group of petitioners, including Children of the Future, filed a complaint with the Supreme Court of the Philippines, alleging that the government’s failure to fulfil its environmental responsibilities and violations of environmental laws had caused significant environmental damage, endangering the well-being, health, and property of all Filipinos. The petitioners claimed that the government’s lack of enforcement of environmental laws contributed to deteriorating air quality in Metro Manila, infringing upon their constitutional rights to a balanced and healthy environment and life. They also raised concerns about the unequal application of laws, especially in favour of car owners. The petitioners proposed measures to reduce fossil fuel consumption and sought writs of kalikasan, a legal remedy under the Philippines Constitution to protect environmental rights. The Court dismissed the application on the ground that the applicants failed to demonstrate how the authorities breached the relevant environmental law.

Claim:

The petitioners requested that the Supreme Court review and consider their complaint against the government’s environmental practices. They asserted that the government’s actions violated their constitutional rights to a healthy environment and life. They claim that the government’s lack of enforcement of environmental laws and its prioritization of car owners have caused substantial harm to the environment and their well-being. They seek the issuance of writs of kalikasan to safeguard their environmental rights and request the Court’s intervention in compelling the government to implement measures to promote sustainability. The key question at hand is whether the Philippine government’s Climate Change Commission breached the constitution by not implementing ambitious climate-related transportation policies.

Decision:

After a thorough review, the Supreme Court acknowledged the concerns of the petitioners and the significance of environmental protection. The court acknowledged that the Rule of Procedure for Environmental Cases provides leeway in terms of standing, making petitions like this permissible. However, in this specific case, the court found that the petitioners had not presented sufficient evidence to prove that the government has engaged in unlawful activities or infringed upon specific environmental laws, thereby violating their environmental rights. A petition for the writ of kalikasan must convincingly establish a clear violation of environmental statutes and regulations, rather than solely relying on the repeated assertion of constitutional rights and unsubstantiated allegations of misconduct.

The Court also took note of the government’s diligent efforts to enforce environmental laws and prioritize initiatives aimed at addressing and mitigating the effects of climate change. As a result, the petition was dismissed.

Links:

The case documents are accessible via Climate Case Chart: Click here.

Status of the case:

Judgment

Suggested citation:

Supreme Court of the Philippines, Segovia et al. v. Climate Change Commission, G.R. No. 211010, 7 March 2017.

Last updated:

20 October 2023.

Categories
2022 Class action Climate activists and human rights defenders Domestic court Emissions reductions/mitigation Indigenous peoples rights New Zealand Right to life Self-determination

Smith v. Attorney-General

Summary:

In March 2022, a prominent Māori landowner and advocate for tribal climate concerns took a significant step by bringing a case before the High Court of New Zealand. The central argument of the case was that the government had violated fundamental human rights, particularly the right to life and minority rights, due to its inadequate response to climate change. The plaintiff’s core contention was that successive governments had consistently failed to address the severe consequences of climate change, with a particular emphasis on its disproportionate impact on the Māori community.

Initially, the case centred on a single cause of action, which involved the government’s breach of duty to take all necessary steps to reduce New Zealand emissions and actively protect the plaintiff and his descendants from the adverse effects of climate change. Later, following a court order issued by Justice Johnston in May 2020, the plaintiff expanded the case to include two additional distinct causes of action. These additional claims were based on alleged violations of the rights to life and the rights of minorities as outlined in sections 8 and 20 of the New Zealand Bill of Rights Act 1990, and the government’s failure to act in accordance with its obligations as stipulated in the Treaty of Waitangi (one of New Zealand’s founding documents, agreed in 1840 between the British Crown and Māori leaders). The Court eventually dismissed all three claims.

Claim:

The plaintiff’s claim was multi-faceted, asserting that the government’s actions, or lack thereof, constituted violations of human rights, particularly the right to life and minority rights, with a focus on the Māori population. The claim included allegations concerning the breach of duty, the New Zealand Bill of Rights Act 1990, and the Treaty of Waitangi.

Decision:

On July 15, 2022, the Court rendered a decision in favour of the government, dismissing all three claims presented by the plaintiff. The Court found the plaintiff’s common law duty of care claim untenable, reasoning that it failed to define specific legal obligations and exceeded the boundaries of incremental development of new duties. Moreover, the Court asserted that the creation of an effective remedy, such as court-monitored monitoring, would necessitate an institutional expertise, democratic participation, and accountability beyond the capabilities of the court process alone.

The Court also rejected the plaintiff’s assertion regarding the right to life, deeming it untenable due to the absence of substantial evidence indicating a ‘real and identifiable’ threat to individuals or groups. Instead, the Court viewed climate change as a general threat impacting all New Zealanders due to its broad-reaching consequences. The Court further noted that the plaintiff’s argument concerning the breach of minority rights lacked merit since the relevant regulations primarily prohibited the Crown from infringing upon minority rights rather than imposing positive duties.

Additionally, the Court clarified that claims based on the Treaty and fiduciary obligations were not valid, as they hinged on the same general duty initially put forth in the first cause of action, which the Court had already rejected as unsound. The Court emphasized that the plaintiff’s contention that this duty was owed exclusively to the Māori population, rather than the wider public, further undermined its validity.

Links:

The case documents are accessible via Climate Case Chart: Click here.

Status of the case:

Judgment

Suggested citation:

Michael John Smith v. The Attorney-General, [2022] NZHC 1693 (15 July 2022), The High Court of New Zealand.

Last updated:

20 October 2023.

Categories
2019 Climate activists and human rights defenders Deforestation Domestic court Human dignity Pakistan Right to freedom of expression Right to life Rights at stake Rights of nature

Sheikh Asim Farooq v. Federation of Pakistan etc.

Summary:

In Pakistan, civil society members have taken legal action against multiple government departments, including the Planning and Development Department, Punjab Environmental Protection Department, and Housing & Urban Development Department. They assert that these departments have neglected their responsibilities regarding the planting, protection, management, and conservation of trees and forests in Punjab. According to the petitioners, this neglect not only violates legal obligations but also infringes upon their constitutional rights, including the rights to life, liberty, dignity, and access to public places of entertainment. This case highlights the government’s failure to address these critical environmental issues.

Claim:

The central argument in this case is that the Pakistani government must be compelled to enforce environmental laws and policies, such as the Forest Act, the Trees Act, and various forestry and climate change policies. The petitioners argue that this action is essential to protect their fundamental rights, as guaranteed by the Constitution. They specifically cite Article 9 (right to life and liberty), Article 14 (right to dignity), Article 26 (right to access public places of entertainment), and Article 38(b) (provision of available leisure places). The petitioners assert that the government’s failure to safeguard natural resources and forests, in light of their drastic depletion and the doctrine of public trust, clearly violates their constitutional rights and warrants judicial intervention.

Decision:

Following the lawsuit, the Lahore High Court granted a writ of mandamus in favour of the petitioners. In its ruling, the court emphasised that international environmental principles, such as sustainable development, the precautionary principle, the public trust doctrine, inter-and intra-generational equity, water justice, food justice, in dubio pro natura, and the polluter pays principle, are integral to Pakistani jurisprudence.

The court stressed the government’s duty to effectively manage and protect forests and urban tree planting, citing specific laws to support its stance. The government was directed to actively adhere to environmental policies, particularly those related to climate change. The court also underscored the importance of environmental rights and the government’s responsibility to combat the impacts of climate change on forests and biodiversity. The court’s order included several instructions, such as enforcing policies, amending legal requirements, and mandating regular reporting on forest growth. It also addressed penalties for non-compliance and encouraged housing societies to support tree planting in green areas, with consequences for the unjustified removal of trees.

Links:

The case documents are accessible via Climate Case Chart: Click here.

Status of the case:

Judgment

Suggested citation:

Sheikh Asim Farooq v. Federation of Pakistan, Writ Petition No. 192069 of 2018, Lahore High Court, Judgment of 30 August 2019.

Last updated:

20 October 2023.