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
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, including BP, Shell and Chevron. 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.

On 6 May 2022, the Human Rights Commission released the findings of its inquiry.

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:
On 6 May 2022, the Human Rights Commission released the findings of its inquiry. In his introductory note, Commissioner Roberto Eugenio T. Cadiz outlined the lengths taken by the Commission to engage with the “carbon majors” over this case, and noted that corporate actors, and not just States, have an obligation to respect and uphold human rights under the UN Guiding Principles on Business and Human Rights (UNGP). He also noted the unprecedented nature of the claim, and the Commission’s own lack of resources in dealing with it. And he rejected the argument by the “carbon majors” that the Commission did not have territorial or subject matter jurisdiction to deal with the case, noting the interrelated nature of all human rights and the impact on the people of the Philippines.

In its report, the Commission began by reviewing the best available scientific knowledge on climate change. It set out, “as established by peer-reviewed science, that climate change is real and happening on a global scale”, and that it is anthropogenic, i.e. caused by human activity. It then set out that climate change is a human rights issue, noting its adverse impacts on human rights both internationally and in the Philippines. It focused particularly on impacts concerning the right to life, the right to health, the right to food security, the right to water and sanitation, the right to livelihood, the right to adequate housing, the right to the preservation of culture, the right to self-determination and to development, and the right to equality and non-discrimination, focusing on the rights of women, children, indigenous peoples, older persons, people living in poverty, LGBTQIA+ rights. It also noted the impacts on the right to a safe, clean, healthy and sustainable environment and on the rights of future generations and intergenerational equity.

After considering the duties of States to protect human rights, as the primary duty-bearers of human rights law, the Commission found that these rights also include extraterritorial obligations, and that while a balance between sovereignty and human rights must be sought, “States’ duty to protect is not confined to territorial jurisdiction”. It relied on international environmental law to identify the concrete procedural and substantive obligations on States in the context of climate change, and their obligation to protect vulnerable sectors against discrimination.

The Commission considered that the refusal of governments to engage in meaningful mitigation action regarding climate change constitutes a human rights violation. It held that “[t]he pursuit of the State obligation to mitigate climate change cannot just be framed as aspirational, where the standard of fulfillment is vague and the timeline is uncertain. Concrete metrics must be set against which States may be held accountable. Failing this, States enable the human rights of their citizens to be harmed, which equates to a violation of their duty to protect human rights” (p. 87). The absence of meaningful action to address global warming, it held, suffices in this regard; these obligations of States include an obligation to regulate corporate activities, and to establish a policy environment that discourages reliance on fossil fuels.

The Commission then turned to business responsibilities, noting that “a State’s failure to perform [its duty to enact and enforce appropriate laws to ensure that corporate actors respect human rights] does not render business enterprises free from the responsibility of respecting human rights.” Referring to the UNGP framework and the UN Global Compact as well as the OECD Guidelines for Multinational Corporations, it applied these standards to the context of climate change. It found that:

  • The anthropogenic contributions of the “carbon majors” to climate change is quantifiable and substantial;
  • The “carbon majors” had early awareness, notice or knowledge of their products’ adverse impacts on the environment and climate systems;
  • The “carbon majors” engaged in willful obfuscation or obstruction to prevent meaningful climate action;
  • The “carbon majors” have the corporate responsibility to undertake human rights due diligence and provide remediation, including through every entity in their value chain;
  • And the UNGPs may be relied on under the law of the Philippines.

It went on to issue a number of recommendations. Concerning States, it called for climate justice, including a pooling of resources and sharing of skills, and urged governments to:

  • Undertake to discourage dependence on fossil fuels, including by phasing out all coal power fossil fuel subsidies and other incentives;
  • To collaborate on innovative climate action and guarantee the enjoyment by all of the benefits of science and technology;
  • To cooperate towards the creation of a legally binding instrument to strengthen the implementation of the UNGPs, and provide redress to victims of corporate human rights impacts;
  • To concretize the responsibilities of corporate actors in the climate context;
  • To discourage anthropogenic contributions to climate change and compensate victims;
  • To ensure access to adaptation measures by all, as well as equality and non-discrimination in climate adaptation and mitigation measures;
  • And to ensure a just transition towards an environmentally sustainable economy;
  • As well as to fulfil climate finance commitments and devise new mechanisms for loss and damage from climate change-related events;
  • To adequately support and protect environmental defenders and climate activists;
  • To promote climate change awareness and education;
  • To include military operations and supply chains in carbon accounting;
  • And to strengthen shared efforts to conserve and restore forests and other terrestrial ecosystems.

The Commission also formulated concrete recommendations for the “carbon majors” themselves, urging them to:

  • Publicly disclose their due diligence and climate and human rights impact assessment results, and the measures taken in response thereto;
  • Desist from all activities that undermine the findings of climate science, including “climate denial propaganda” and lobbying activities;
  • Cease further exploration of new oil fields, keep fossil fuel reserves in the ground, and lead the just transition to clean energy;
  • Contribute to a green climate fund for the implementation of mitigation and adaptation measures;
  • And continually engage with experts, CSOs, and other stakeholders to assess and improve the corporate climate response through “a new chapter of cooperation towards a united front for climate action”.

Speaking directly to financial institutions and investors, the Commission noted their ability to “steer companies and industries towards a sustainable path by aligning lending and investment portfolios with targets set by science”. It considered that their role in financing sectors and projects that generate greenhouse gas emissions make them “similarly accountable for global warming”. Accordingly, they were urged to:

  • Refrain from financing fossil fuel related projects and instead direct capital towards green projects; and
  • Exert social, political and economic pressure on the fossil fuel industry to transition to clean energy by divesting financial instruments related to fossil fuels.

The Commission concluded by noting the role of UN institutions, NHRIs, and courts — reviewing examples of climate litigation such as the Urgenda or Leghari cases, noting that “even when courts do not rule in favor of the claimants, they still contribute to meaningful climate response through their elucidation of the law and the rights and obligations of the parties”. Similarly, NGOs, CSOs, the legal profession and individuals are recommended to champion human rights and continue engaging in strategic litigation to strengthen business and human rights norms, change policy, increase governments’ ambitions, and create precedents.

The Commission furthermore addressed the Philippines’ own lackluster record of climate action, making concrete recommendations to the government to, among other things, formulate a national action plan on business and human rights, declare a climate and environmental alert, and revisit its NDC under the Paris Agreement as well as implement coal moratoriums, transition to low-carbon transportation systems, implementing REDD+ measures and data building and reporting mechanisms, and create legislative change. It also recommended to the domestic judiciary to create rules of evidence for attributing climate change impacts and assessing damages, and take note of the anthropogenic nature of climate change.

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, Report of 6 May 2022.

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

The report of 6 May 2022 is available here.

A blogpost on the importance of the report by Annalisa Savaresi and Margaretha Wewerinke-Singh is available on the GNHRE blog.

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

Categories
2021 Business responsibility Domestic court Emissions reductions The Netherlands

Milieudefensie and others v. Royal Dutch Shell PLC

Summary:

This case was brought as a class action tort suit by a group of NGOs, as well as more than 17,000 individuals represented by Milieudefensie. The applicants claimed that Royal Dutch Shell had an obligation to reduce its carbon emissions relative to 2019 levels by 2030 across its entire energy portfolio. It represents a groundbreaking advance in the context of business responsibility for human rights impacts.

Date:

26 May 2021

Facts:

The court extensively discussed the science on climate change and its impacts, reductions targets, and the existing international instruments at length. It reiterated the reduction goals set out in the Paris Agreement.

Admissibility:

The court described the case as a public interest action. These are allowed under Dutch law, and the court noted that the common interest of preventing dangerous climate change by reducing CO2 emissions can be protected in a class action. It discussed at length whether the cases shared a ‘similar interest’, which is a requirement under the Dutch Civil Code. This requirement entails that the interests in question must be suitable for bundling into a class action so as to safeguard an the legal protection of the stakeholders.

In determining whether the individual applicants had locus standi, the court held that they had no separate interest beyond that represented by Milieudefensie before the court, and wrote off the individual claims.

Merits:

Relying on domestic law, human rights law, and soft law instruments, the domestic court interpreted the unwritten standard of care contained in Dutch domestic tort law.

Book 6, Section 162 of the Dutch Civil Code proscribes acts that conflict with what is generally accepted according to unwritten law. The court held that this standard of care also applies to Royal Dutch Shell. Applying this standard, the court held that Shell was obliged to reduce its CO2 emissions by net 45% at end 2030, relative to 2019. This reduction obligation relates to Shell’s entire energy portfolio and all of its aggregate emissions. This is an obligation of result for the activities of the Shell group itself, and a best-efforts obligation with respect to its business relations and end-users. Because Shell has the ability to influence these relations, it is expected to use its influence to bring about emissions reductions.

Remedies:

The judgment is subject to appeal, but the court rendered it provisionally enforceable, despite noting the possibility of irreversible negative consequences for Shell.

Separate opinions:

None

Measures taken as a result of the judgment:

Pending

Status of case:

Decided, appeal pending

Suggested case citation:

The Hague District Court, Milieudefensie and Others v. Royal Dutch Shell PLC and Others, case number C/09/571932, Judgment of 26 May 2021.

Links:

For the full judgment, see here.

For a summary in English, see here.

Categories
2021 Business responsibility Domestic court Extraterritorial obligations Standing/admissibility The United Kingdom

Okpabi and Others v. Royal Dutch Shell and Others

Summary:
In October and December 2015, the Ogale and Bille Nigerian communities filed parallel complaints against the UK company Royal Dutch Shell plc (Shell) and its Nigerian subsidiary Shell Petroleum Development Company (SPDC) in the UK High Court. The claimants sought a remedy for the extensive oil pollution caused by Shell arguing that it had affected their livelihoods and the environment. They claimed that Shell had failed to prevent oil spills and did not conduct proper clean-up. The plaintiffs argued that Shell had not seriously prevented contamination of agricultural land and waterways. They argued that Shell, as the parent company, owed them duty of care because it exercised significant control over the material aspects of SPDC’s operations and was responsible for them.

In January 2017, the High Court held that the claimants could not sue Shell in English Courts. The Court held that there was not sufficient evidence that Shell exercised a high degree of oversight, control or direction over SPDC. It therefore had no legal responsibility as a parent company for pollution by its Nigerian subsidiary. The Court of Appeal upheld the High Court’s decision in February 2018. The Court held that the parent company did not hold a duty of care towards the affected communities. In May 2020 the plaintiffs filed an appeal with the UK Supreme Court, arguing that the parent company Shell owed them a common law duty of care in respect to the extensive environmental harmed caused by their business operations in Nigeria. On 12 February 2021, the Supreme Court allowed the appeal and ruled that the case could proceed in the UK Courts. The decision determined that there is an arguable case that Shell is legally responsible for the pollution caused by the activities of its subsidiary to the Ogale and Bille communities.

Date of decision:
12 February 2021

Admissibility:
The UK Supreme Court ruled that UK courts have jurisdiction over the case, due to the fact that the parent company may owe the plaintiffs a duty of care and therefore the action against Shell constitutes a triable issue.

Merits:
TBD

Remedies:
TDB

Suggested citation:
UK Supreme Court, Okpabi and Others v. Royal Dutch Shell and Others, UKSC 2018/0068, Judgment of 12 February 2021, [2021] UKSC 3.

See also:
The similar (on the facts) case of Milieudefensie and Others v. Royal Dutch Shell PLC (before the Dutch courts).

For the full judgment, click here.

To watch a webcast of the hearing, click here.

Categories
2020 Business responsibility Deciding Body Domestic court Emissions reductions Keywords Paris Agreement Private and family life Right to life Rights at stake The United Kingdom Year

R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd

Summary:
On 26 June 2018, the UK Secretary of State for Transport adopted the Airports National Policy Statement (ANPS), which governs the construction of a third runway at Heathrow Airport. This led to challenges from several environmental campaigners, including Friends of the Earth Ltd and Plan B Earth. Among other grounds, it was argued that the Secretary of State had disregarded the UK Government’s commitments under the Paris Agreement (ratified on 17 November 2016 by the UK) when designating the ANPS.

In 2019 the Divisional Court dismissed all of the objectors’ claims in two separate judgments. However, in 2020 the Court of Appeal allowed part of Friends of the Earth’s and Plan B Earth’s grounds, and held that the ANPS was unlawful (see judgment here). The Secretary of State did not appeal the Court of Appeal’s decision. However, Heathrow Airport Ltd, owner of Heathrow Airport, sought and was granted permission to appeal to the Supreme Court (UKSC). Heathrow Airport stated that it had already invested a large sum of money in promoting the third runway. On 16 December 2020, the Supreme Court unanimously decided to allow Heathrow Airport’s appeal on all grounds, ruling that the ANPS was lawful. However, the judgment states clearly that the climate must be considered at the planning permission stage of the third runway.

Human rights claims:
Under Section 3 of the Human Rights Act 1998, Friends of the Earth et al. argued against interpreting section 5(8) of the Planning Act 2008 in a way that excluded consideration of the Paris Agreement temperature limit. This would result in the development of large-scale national projects posing an unacceptable risk to people’s lives and homes, in breach of Articles 2 and 8 of the European Convention on Human Rights (ECHR).

The Supreme Court found that this reasoning must fail for two reasons. First, this argument had already been raised as a separate ground before the Divisional Court, where it was rejected. This decision was not appealed to the Court of Appeal, and was therefore not considered subject to the UKSC proceedings. Secondly, even if this argument were within the scope of the appeal, it would not have succeeded because any effect of the third runway on the lives and families of those affected by the consequences of climate change would result not from the designation of the ANPS but from granting permission to develop the construction project. As Heathrow Airport Ltd. had conceded, and the respondents agreed, the ANPS requires the third runway to be evaluated against the emissions targets in place if and when an application to develop the runway were to be made (para 113 of the UKSC judgment).

Further information:
Shortly after the Supreme Court’s decision, Plan B Earth announced in a press release that it intends to take the judgment to the European Court of Human Rights, arguing that reliance upon the 2 degrees Celsius target is a violation of the right to life (see here). Additionally, Plan B Earth served a pre-action letter on the UK Government alleging that its failure to develop a plan to address climate change is a violation of human rights as well as domestic and international law (see here).

Date of decision:
16 December 2020

Suggested case citation:
UK Supreme Court, R (on the application of Friends of the Earth Ltd and others) v. Heathrow Airport Ltd, UKSC 2020/0042, Judgment of 16 December 2020, [2020] UKSC 52

Case documents:
For the full judgment, click here.

To watch a webcast of the hearing, click here.

Further reading:
Joanne Hawkins, ‘A lesson in un-creativity: (R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52’, 23(4) Environmental Law Review (2021), 344-349. Available here.

Categories
2020 Business responsibility Domestic court Emissions reductions France Standing/admissibility

Les Amis de la Terre, Survie v. Total SA

Summary:

Total S.A. is a French energy company with oil projects in Uganda and Tanzania. According to the French “loi de vigilance”, companies with a certain size that meet certain criteria must develop a “plan de vigilance” documenting how they and the companies in their supply chain respect human rights and the environment in their business activities. The applicants claim that Total’s environmental plan (part of the “plan de vigilance”) is not suitable for achieving the goals of the Paris Climate Agreement. In addition to better respect for human rights, the NGOs have demanded that Total take more effective measures to protect the environment. The first instance court, the Nanterre Civil Court of Justice, found that it had no jurisdiction over the case and that it fell instead within the jurisdiction of the commercial courts. The applicant NGOs appealed. The Court of Appeal of Versailles confirmed the judgment of the first instance, and the NGOs are now considering filing an appeal before the French Supreme Court.

Admissibility:
The Court confirmed the judgment of the first instance court, which had decided that the dispute fell within the jurisdiction of the commercial court. 

Date of filing:
16 March 2020

Date of decision:
10 December 2020

Suggested citation:
Court of Appeal of Versailles, Les Amis de la Terre, Survie v. Total SA, case no. RG20/01692, decision of 10 December 2020.

Full judgment:
The full judgment is available here.

Categories
2020 Business responsibility Deciding Body Domestic court Emissions reductions France Keywords Paris Agreement Rights at stake State concerned Year

Notre Affaire à Tous and Others v. Total

Summary:
Along with 13 municipalities and four other NGOs, the French environmental organization Notre Affaire à Tous requested the oil company Total to take measures to prevent human rights and environmental violations. After a meeting with Total in June 2019, the complainants issued a “mise en demeure” (a letter of formal notice) to the oil giant that is responsible for more than two-thirds of France’s greenhouse gas emissions. They granted Total three months to include reasonable greenhouse gas emission reduction targets in its “due diligence plan” before they would file a lawsuit.   

On 28 January 2020, the complainants asked the District Court of Nanterre to order Total to align its practices with the goal of limiting global warming to 1.5 degrees Celsius. According to the complainants, Total has not provided sufficient detail in its “vigilance plan” to reduce its emissions and that the company is still not in compliance with international climate agreements, such as the 2015 Paris Agreement. Among other requests, the complainants ask the Court to order Total to reduce its net emissions by 40% by 2040 (compared to 2019).

Total claimed that the Nanterre District Court lacked jurisdiction and requested that the case be brought before the Commercial Court. On 11 February 2021, the pre-trial judge rejected this request and confirmed the jurisdiction of the District Court. In order to settle this dispute, the Versailles Court of Appeal confirmed the District Court’s jurisdiction and based its decision on “the legislator’s intention to entrust actions relating to ecological damage to specially designated judicial courts only.”

Rights invoked:
The complainants argued that Total’s obligation to take measures to prevent human rights and environmental violations stems from the Law on the Duty of Vigilance of 27 March 2017. This law obliges a company to establish a detailed “vigilance plan” which identifies and seeks to mitigate the risks to human rights, fundamental freedoms, the environment, and public health that may result directly or indirectly from a company’s activities.

Date of decision:
Pending

Suggested case citation:
Nanterre District Court, Notre Affaire à Tous and Others v. Total SA, complaint of 28 January 2020.

Links :
For the full complaint (in French), see here.

For an unofficial translation of the complaint (in English), see here.

For the order confirming the jurisdiction of the Nanterre District Court (in French), see here.