Category: Emissions reductions/mitigation

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
2023 Colombia Domestic court Emissions reductions/mitigation Indigenous peoples rights Indigenous peoples' rights Just transition litigation Participation rights Right to culture Self-determination Uncategorized

Pirá Paraná Indigenous Council and Another v. Ministry of Environment and Others (Pirá Paraná Case)

Summary:

On July 15th, 2022, the Pirá Paraná Indigenous Council, in collaboration with the Association of Indigenous Traditional Authorities of the River Pirá Paraná, initiated a ‘tutela’ proceeding against private corporations and Colombian authorities. This expedited legal procedure is only available when regular mechanisms are deemed inadequate to ensure the protection of the plaintiffs’ rights. The legal action arises from concerns related to the Baka Rokarire project, particularly its carbon credit initiatives, within the Indigenous territory situated in the heart of the Amazon rainforest, located in the Vaupés region. The central issue at hand is the potential violation of Indigenous fundamental human rights, including self-determination, self-governance, and the preservation of cultural diversity and integrity. The claimants argue that the individual who represented the Indigenous community in the project lacked proper legitimacy, while public authorities allegedly failed to safeguard Indigenous rights throughout the project’s registration and development. Private companies are accused of neglecting human rights due diligence standards and deliberately excluding Indigenous authorities from the decision-making process.

Claim:

The plaintiffs argue that the Baka Rokarire project, especially its carbon credit initiatives, violate their fundamental human rights as Indigenous people. Importantly, the lawsuit filed by the Pirá Paraná community does not contest land ownership rights but instead focuses on preserving the integrity of the territory, which holds great cultural and ancestral significance for Indigenous populations. Their primary concern centers around the absence of genuine Indigenous representation in the project’s agreement. Furthermore, they accuse public authorities of failing to fulfill their responsibilities in safeguarding Indigenous rights during the project’s registration and execution. Private companies involved are accused of neglecting human rights due diligence standards and intentionally excluding Indigenous authorities from the project’s development. The main argument is that the potential negative impact on Indigenous rights justifies legal intervention.

Decision:

Initially, based on the subsidiarity of the tutela mechanism, the Judicial Court deemed the case inadmissible, citing that the plaintiffs could have pursued other available legal avenues. The court’s rationale was that the tutela mechanism was not the suitable course of action in this instance, as there was no clear evidence indicating the presence of irreparable damage in the case. The Administrative Tribunal upheld this decision. However, in April 2023, a significant development occurred when Colombia’s Constitutional Court took the unprecedented step of reviewing the case. This marks the first-ever evaluation of a case involving the voluntary carbon market, potentially setting a legal precedent that will delineate the boundaries of activities permitted within territories inhabited by Indigenous communities in carbon credit projects. The Constitutional Court’s review will also encompass an examination of whether the tutela mechanism is the appropriate means for challenging these projects, especially concerning Indigenous rights. This decision to review represents a noteworthy opportunity to provide clarity regarding Indigenous rights and cultural preservation within the context of carbon offset initiatives.

Links:

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

Status of the case:

The case is currently pending before the Constitutional Court of Colombia.

Last updated:

05 October 2023.

Categories
2022 Children and young people Domestic court Emissions reductions/mitigation European Convention on Human Rights Non-discrimination Private and family life Right to life Right to property Sweden Uncategorized

Anton Foley and others v. Sweden (Aurora Case)

Summary:
On 25 November 2022, a group of over 600 young people born between 1996 and 2015 filed a class action lawsuit against the Swedish State in the Nacka District Court (Nacka tingsrätt). According to the Plaintiffs, the Swedish State is failing to do its fair share to reduce the greenhouse gas (GHG) concentration in the atmosphere to keep warming below 1.5°C as compared to pre-industrial levels, by not undertaking immediate and adequate procedural and substantive measures to continuously reduce GHG emissions and enhance GHG sinks, thus failing to adequately protect the plaintiffs from adverse impacts of anthropogenic climate change. Therefore, the Plaintiffs claim that this constitutes a violation of their rights to life, private and family life, and non-discrimination under Articles 2, 8, and 14 of the ECHR, and their right to property under Article 1, Protocol 1 of the ECHR.

The Plaintiffs request the Nacka District Court to order the Swedish State to do its fair share in reducing GHG emissions to keep global warming below 1.5°C. The Swedish State should be required to take sufficient and adequate measures to ensure that emissions are continuously reduced and that GHG are absorbed through natural carbon sinks to limit the risk of adverse impacts of climate change on them.

On 31 March 2023, the Nacka District Court invited the Swedish State to file its response to the Plaintiffs’ application. On 21 June 2023, the Swedish State filed its response with the Nacka District Court, requesting that the case be dismissed. The Court then invited the Plaintiffs to submit their comments on the request for dismissal no later than 28 August 2023.

Date filed:
25 November 2022

Status of case:
Pending

More information:
The Plaintiffs’ summons application is available via the Climate Case Chart.

Suggested citations:
Nacka District Court, Anton Foley and others v. Sweden, case T 8304-22.

Last updated:
16 August 2023

Categories
2023 Children and young people Domestic court Emissions reductions/mitigation Evidence Fossil fuel extraction Human dignity Indigenous peoples' rights Right to a healthy environment Right to health Standing/admissibility United States of America

Held and Others v. Montana

Summary:
In Held and Others, sixteen young plaintiffs aged between two and eighteen brought a case against the U.S. state of Montana alleging violations of the state constitution due to climate change. The youth plaintiffs in this case, which is to some extent comparable to the Juliana litigation, alleged that they are already experiencing ‘a host of adverse consequences’ from anthropogenic climate change in Montana, including increased temperatures, changing weather patterns, more acute droughts and extreme weather events, increasing wildfires and glacial melt. Fossil fuels extracted in Montana cause emissions higher than those of many countries, including Brazil, Japan, Mexico, Spain, or the United Kingdom. The plaintiffs argued that this was causing health risks, especially for children, and that the defendants, among them the state of Montana, its Governor, and various state agencies, had “act[ed] affirmatively to exacerbate the climate crisis” despite their awareness of the risks to the applicants. On 14 August 2023, Judge Kathy Seeley ruled wholly in favor of the youth plaintiffs, declaring that Montana had violated their constitutional rights and invalidating the statutory rule forbidding state authorities from considering the impacts of GHG emissions or climate change in decision-making related to fossil fuel extraction.

Claims made:
The plaintiffs challenged the constitutionality of fossil fuel-based provisions of Montana’s State Energy Policy Act along with a provision of the Montana Environmental Policy Act which forbids state authorities from considering the impacts of GHG emissions or climate change in their environmental reviews (the “MEPA Limitation”). They also challenged the aggregate acts that the state has taken to implement and perpetuate a fossil fuel-based energy system under these statutes.

The plaintiffs sought a declaration that their right to a clean and healthy environment includes a right a stable climate, and that existing approaches to greenhouse gas emissions in Montana violate constitutional provisions, including the right to a clean and healthy environment; the right to seek safety, health, and happiness; and the right to individual dignity and to equal protection. They also sought injunctive relief, namely an order to account for Montana’s greenhouse gas emissions and to develop and implement an emissions reductions plan.

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

Judge Seeley’s Ruling of 14 August 2023:
After a trial held from 12-23 June 2023, Judge Kathy Seeley of the First Judicial District Court of Montana issued a ruling in this case on 14 August 2023. Noting that “[t]he science is clear that there are catastrophic harms to the natural environment of Montana and Plaintiffs and future generations of the State due to anthropogenic climate change”, she ruled wholly in favor of the plaintiffs, declaring that the state of Montana had violated their constitutional rights to equal protection, dignity, liberty, health and safety, and public trust, all of which are predicated on their right to a clean and healthful environment (p. 92-93).

In doing so, Judge Seeley ruled that the youth plaintiffs had standing to bring the case because they had proven that they had experienced significant injuries. The court set out the different impacts on the plaintiffs at length (p. 46-64). It ultimately found that the plaintiffs “have experienced past and ongoing injuries resulting from the State’s failure to consider GHGs and climate change, including injuries to their physical and mental health, homes and property, recreational, spiritual, and aesthetic interests, tribal and cultural traditions, economic security, and happiness” (p. 86 of the ruling). The judge also ruled that while mental health injuries based on state inaction on climate change do not on their own constitute a cognizable injury, “mental health injuries stemming from the effects of climate change on Montana’s environment, feelings like loss, despair, and anxiety, are cognizable injuries” (p. 86-87). The ruling recognizes that “[e]very additional ton of GHG emissions exacerbates Plaintiffs’ injuries and risks locking in irreversible climate injuries”, and that these injuries “will grow increasingly severe and irreversible without science-based actions to address climate change” (p. 87). As children and youth, the plaintiffs are disproportionately impacted by fossil fuel pollution and climate impacts, and their injuries are “concrete, particularized, and distinguishable from the public generally” (p. 87).

On causation, and having heard and evaluated testimony from several expert witnesses, the Court extensively reviewed the scientific evidence concerning the causation and progression of anthropogenic climate change and identified the Earth’s energy imbalance as the critical metric for determining levels of global warming (p. 22). Having established that “Montana is a major emitter of GHG emissions in the world in absolute terms, in per person terms, and historically”, and noting the state government’s continuing approval of fossil fuel projects despite its already extensive production of oil, gas and coal, the Court found that there was a “fairly traceable connection” between Montana’s statutes, its GHG emissions, climate change, and the injuries suffered by the plaintiffs (p. 87). Noting that the state government had the authority to limit fossil fuel-related activities, and having regard to the fact that the MEPA Limitation causes the state to ignore climate impacts and renewable energy alternatives to fossil fuels, as well as noting the economic and environmental advantages of a green energy transition for Montana, the Court noted that “current barriers to implementing renewable energy systems are not technical or economic, but social and political” (p. 83). The state of Montana, it held, “authorizes fossil fuel activities without analyzing GHGs or climate impacts, which result in GHG emissions in Montana and abroad that have caused and continue to exacerbate anthropogenic climate change” (p. 88). It noted also that these emissions were “nationally and globally significant”, and could accordingly not be considered de minimis; they “can be measured incrementally and cumulatively both in terms of immediate local effects and by mixing in the atmosphere and contributing to global climate change and an already destabilized climate system” (p. 88).

On the redressability of these impacts, the Court noted that the psychological satisfaction of the ruling itself did not constitute sufficient redress, and that declaring the relevant state statutory rules unconstitutional would provide partial redress because ongoing emissions will continue to cause harms to the plaintiffs. Noting that “[i]t is possible to affect future degradation to Montana’s environment and natural resources and injuries to these Plaintiffs”, and applying strict structiny to the state’s statutes, the Court found that the MEPA Limitation violates the right to a clean and healthful environment under the Montana Constitution, which protects children and future generations (among others) and includes the protection of the climate system. As a result, the Court tested whether the MEPA Limitation was narrowly tailored to serve a compelling government interest, finding that neither had the state authorities shown that it served a compelling governmental interest, nor was it narrowly tailored to serve any interest.

As a result, the judge invalidated the Montana legislation that promoted fossil fuels and prohibited analysis of GHG emissions and corresponding climate impacts.

Date filed:
13 March 2020

Date of admissibility decision:
4 August 2021

Date of Ruling:
14 August 2023

More information:
The original complaint is available from the Western Environmental Law Center.

The admissibility decision is available on climatecasechart.com.

Judge Seeley’s findings of fact, conclusions of law and order of 14 August 2023 are available below.

Held-v-MontanaDownload

Suggested citations:
Montana First District Court for Lewis and Clark county, Held and others v. State of Montana and others, Findings of Fact, Conclusions of Law, and Order, 14 August 2023, Cause no. CDV-2020-307.

Categories
2022 Chile Domestic court Emissions reductions/mitigation Gender / women-led Non-discrimination Right to a healthy environment Right to health Right to life Separation of powers

Women from Huasco & Others v. Government of Chile & Ministries of Energy, Environment and Health

Summary:

On 25 November 2021, a group of women from the city of Huasco, alongside Doris Zamorano, a member of a civil society organization in Huasco, brought a constitutional action against Chile’s omission in coordinating the early closure of two coal-fired power plants. The Chilean government had signed closure agreements with owners of various thermoelectric power plants, but the two plants in question were absent from these agreements. They would be subject to the general clause requiring closure of all coal-fired power plants by the year 2040. The petitioners argued the emissions from the powerplants and the uncertainty as to their closure in advance of the year 2040 contributes to interferences with their exercise and enjoyment of fundamental rights. In particular, they point to the governmental authorities’ awareness about the persistent local air pollution and treatment of Huasco as a ‘sacrifice zone,’ as well as Chile’s climate mitigation commitments.  

On 2 May 2022, the Court of Appeals of Copiapo dismissed the petition on the ground that adjudication of the issues raised by the petitioners was beyond its competence. The petitioners have filed an appeal against this decision before the Supreme Court of Chile.

Claims:

The applicants argue that the State’s omissions consist in its failure to close two coal-fired power plants, failure to justify the exclusion of the two power plants from the list of plants due to be closed earlier than 2040 pursuant to its climate policy, and toleration of emissions from the two power plants despite no compensation being granted for the negative environmental impacts from their operation. The petition alleges that these omissions violate their constitutional rights to equality, to life, physical and psychological liberty, to an environment free from contamination, and to the protection of their health, as well as a breach of the State’s administrative duty not to act arbitrarily. In support of the latter contention, the petitioners relied on the administrative law principles of service of the human person, coordination between State organs and the environmental principles of prevention and precaution. Further, they argued that the normative content of the State’s duty were to be informed by Sustainable Development Goals, International Labour Organisation Guidelines on Just Transition, UN Framework Convention on Climate Change, Paris Agreement and Chile’s 2020 NDC Communication under the Paris Agreement. By way of evidence, the petitioners relied on reports of high levels of air pollution in the city of Huasco, and a comparative analysis of morbidity rates and incidences of respiratory illnesses in Huasco and Caldera, a similar city that was not in the vicinity of coal-fired power plants.

The petitioners requested the Court of Appeals of Copiapo to order the concerned state organs to (i) establish and implement a plan to effect the early closure of the two power plants, and (ii) establish a compensation plan for historical and current emissions of the power plants to redress the environmental and health-related impacts.

In his reply, the Minister of Energy challenged the appropriateness of a judicial review of complex public policies which were the result of a democratic and representative participative process. The Minister also elaborated on the procedural history and content of the government’s policy on decarbonisation, and the limits of the legal competences of the various Ministries vis-à-vis regulation of private actors in the energy sector, to rebut the petitioners’ arguments about the State’s breach of administrative duties. The reply submitted by the Minister of Environment argued that there is no omission attributable to the Ministry of the Environment since regulation of power plants falls within the authority of the Ministry of Energy, and that environmental management instruments were enacted to improve the air quality in Huasco. The Minister of Health submitted a similar reply. The Undersecretary General of the Presidency argued that State authorities lack the power to order the early closure of the said power plants, and that all of the authorities named in the petition had taken relevant measures in relation to the factual situation described by the petitioners.

Decision:

On 2 May 2022, the Court of Appeals of Copiapo rendered its decision wherein it rejected the petition. The Court noted that petitioners’ action for constitutional review of the State’s omission suggests that they disagree with its actions which form part of the public policy on decarbonisation of the country. However, this policy was developed and implemented with the participation of various state organs (with the Ministry of Energy being at the head of them) and it is not for the Court to substitute itself for them and order a replacement or modification of such policy. The Court also noted the involvement of non-State stakeholders, including both actors from the industry and civil society, in the establishment of the decarbonisation policy.

Additionally, with respect to closure of power plants, the Court noted that State organs do not have the authority to demand closures and that such an outcome can only be achieved through agreements between the State and the concerned owners of the power plants. The Court concluded that the fact that the agreement concluded between the State and the owner of the two power plants in question does not envisage a concrete plan for their closure, as it does for some other power plants, does not evince arbitrariness.

Links:

The case documents are accessible via Climate Case Chart (click here).

Status of the case:

The case is pending in appeal before the Supreme Court of Chile.

Last updated:

08 August 2023.

Categories
Adaptation Biodiversity Children and young people Deforestation Domestic court Emissions reductions/mitigation Farming Imminent risk Indonesia Loss & damage Paris Agreement Right to a healthy environment Right to development and work Right to education Right to health Right to housing Right to life Right to subsistence/food Right to water Sea-level rise Vulnerability

Indonesian Youths and others v. Indonesia (Rasya Assegaf and 12 others v. Indonesia)

Summary:
This case was brought by thirteen children, youth, and members of vulnerable groups from different parts of Indonesia, all of whom allege that they are affected by the Indonesian Government’s response to climate change. The seven youth plaintiffs, aged 7-29, together with six adults whose involvement in agrarian and farming activities renders them particularly vulnerable, invoke their constitutitional rights to life, to live in physical and spiritual prosperity in a good and healthy environment, to self-development through the fulfillment of basic needs, to food and water, to education, to work and earn a decent living, as well as the minor plaintiffs’ rights as children. They brought their complaint to Indonesia’s National Commission of Human Rights, the counrty’s independent national human rights authority, calling on it to exercise its monitoring and mediating function.

The complaint in depth:
The plaintiffs in this case emphasize that the Indonesian government has recognized the country’s extreme vulnerablility to the impacts of climate change, including to sea level rise, heat waves, storm surges, tidal flooding, shifts in the wet and dry seasons, changes to rain patterns, decreased food production, disturbances in the availability of water, the spread of pests, plant and human diseases, the sinking of small islands, and the loss of biodiversity. They also emphasize that Indonesia is already experiencing many of these serious climate change impacts, and that these will only continue to get worse.

In their submissions to the National Commission of Human Rights, the plaintiffs particularly emphasize the effects of heat stress combined with Indonesia’s humid climate; the loss of food security and livelihoods in fishing and tourism due to coral bleaching and a decrease in fish stocks; unpredictable precipitation patterns and resulting drought, water insecurity and flooding; and the impacts of heat and precipitation changes on agriculture, food and water security, and plant diseases and pests. They also emphasize the risks associated with tidal floods, high waves, saltwater intrusion and strong winds due to sea level rise, which endanger lives and will cause a loss of living space, shelter, food and water insecurity. In this regard, they note research by the World Bank and the Asian Development Bank that shows that, in a high emissions scenario, and without adaptation, more than 4,2 million Indonesians will be affected by permanent tidal flooding by 2070–2100. This same research shows that 5.5-8 million Indonesian people will be affected by flooding from once-in-a-century storm surges by 2030. In addition, they note that climate change causes a higher incidence of vector-borne diseases affecting children and vulnerable populations, such as malaria, dengue fever, and cholera. Several of the plaintiffs have suffered from these diseases already. Other impacts on the health of children include air pollution, malnutrition and stunting, drowning during floods, coastal flodding, and mental health impacts such as climate anxiety. Citing a study from the American Psychological Association, they argue that experiencing extreme weather events leads to higher rates of depression, anxiety, posttraumatic stress disorder, drug and alcohol use, domestic violence, and child abuse.

The plaintiffs emphasize that they have already experienced flooding, cyclones, extreme heat, vector-borne illness, climate anxiety, and impacts on their homes and agricultural or fishing livelihoods. They submit that the Government of Indonesia has a constitutional responsibility to protect them from the human rights impacts of the climate crisis, and allege that it has failed to do so by contributing to causing and exacerbating the climate crisis. Noting that Indonesia’s domestic law and its NDC under the Paris Agreement acknowledge the link between human rights and climate change, they submit that constitutional rights should be interpreted in harmony with international human rights law. This, they argue, means recognizing that Indonesia has obligations to mitigate and adapt to climate change, as well as cross-sectoral obligations to ensure that all climate adaptation and mitigation actions are inclusive, fair and participatory, and to prioritize the most affected and vulnerable populations.

The plaintiffs argue that the Indonesian government should prioritize mitigation through a moratorium on new coal-fired power plants and the licensing of palm oil plantation concesssions as well as by promoting sustainable polycultural and indigenous farming practices that will reduce its net GHG emissions and ensure crop resilience.

In terms of adaptation, the plaintiffs argue that Indonesia should ensure protection especially of those living in vulnerable areas, including small islands, riparian and lowland areas, coastal areas, and dry areas. This should take place through a community-oriented, inclusive and participative process, and should serve to upgrade infrastructure, provide social protection mechanisms, prioritize nature-based adaptation through ecosystem restoration, strengthen the resilience of food systems and ensure that adaptation does not take place at the expense of any vulnerable groups or future generations. In particular, they emphasize the rehabilitation of mangrove and coral ecosystems, given their function as natural flood and erosion protection; the promotion of sustainable agricultural practices, and procedural obligations to ensure consultation, information, inclusivity and equity.

The plaintiffs note Indonesia’s knowledge of climate change, its commitment to the Paris Agreement’s 1.5 degree warming target under its Updated NDC, and its awareness of the risk of huge economic losses due to the dangers of climate change. Against this background, they argue that Indonesia has violated its human rights obligations by failing to mobilize the maximum available resources and take the highest possible level of ambition in mitigating its emissions, noting that it is one of the world’s largest emitters of land use change and energy emissions and the world’s seven largest emitter of cumulative emissions. They argue that, to align with the 1.5°C degree warming scenarios, Indonesia needs to limit its emissions from 660 to 687 million metric tons of CO2e by 2030. It is failing to do so, instead expanding its coal-fired power plant network and supporting ongoing deforestation.

The plaintiffs argue that these measures, i.e. the government’s failure to take adaptive steps, and its contribution to and exacerbation of climate change, have violated their right to a healthy environment, their right to health, their right to life and their rights to food and water. As concerns their right to development, the plaintiffs argue that “[t]he impact of climate change on the right to development has a ripple effect across all human rights”. They also link the government’s policies to impacts on their enjoyment on the right to education and the right to work and earn a decent living. Lastly, for the child applicants, they note risks for the enjoyment of the highest attainable standard of physical and mental health, access to education, proper food, proper housing, safe drinking water, and sanitation.

Measures requested:
The Plaintiffs request that the Commission:

  • State that climate change is a human rights crisis, and that each additional degree of heating will cause further impacts;
  • State that climate change has disrupted their rights to a healthy environment, life, health, and development through the fulfillment of basic needs, food, water, education, and employment; that the child plaintiffs are particularly vulnerable in this regard; and that the Government has violated its obligation to respect, protect, uphold and fulfill the plaintiffs’ human rights;
  • State that “the government has contributed to and continues to perpetuate the climate crisis by knowingly acting in disregard of the available scientific evidence on the necessary measures to mitigate climate change”, and that its actions — such as its approval of new coal-fired power plants, approval of large-scale deforestation and land clearing, and failure to implement basic adaptation measures — are an expression of this;
  • Recommmend immediate review of law and policy to reduce GHG emissions, mobilize resources, and minimize losses;
  • Recommend steps to reduce Indonesia’s national GHG emissions, including moratoria on new coal plants and on concessions for oil palm plantations, industrial forest plantations, and the clearing of peatlands; the promotion of sustainable and polycultural agricultural practices; and adaptation measures; and
  • Recommend an inclusive, fair, open, and effective approach to public participation in climate-related decision-making.

Developments in the case:
The case is still pending. However, in receiving the case during a hearing held on 14 July 2022, two of the Commissioners heard directly from the plaintiffs and welcomed the petition. Commissioner Choirul Anam stated that “climate change is an enormous problem, which influences various human rights. It is our job to push for better government actions in responding to climate change.”

Further information:
The text of the complaint in this case is available (in Bahasa and English) from ClimateCaseChart.com.

For a comment, see Margaretha Quina and Mae Manupipatpong, ‘Indonesian Human Rights Commission’s First Human Rights Complaint on the Impacts of Climate Change’, Climate Law Blog, 22 November 2022, available here.

Suggested citation:
National Commission of Human Rights of Indonesia, Indonesian Youths and others v. Indonesia, complaint filed on 14 July 2022.

Last updated:
8 August 2023.

Categories
2023 Biodiversity Children and young people Deforestation Domestic court Emissions reductions/mitigation Farming Indigenous peoples' rights Loss & damage Right to a healthy environment Sea-level rise Separation of powers Standing/admissibility United States of America Victim status Vulnerability

Navahine F., a Minor v. Dept. of Transportation of Hawai’i et al.

Summary:
In January 2022, fourteen young people filed suit against the Department of Transportation of the US state of Hawai’i, its Director, the state’s Governor, and the State itself. In Hawai’i Circuit Court, they alleged that the state’s transportation system violated the Hawai‘ian Constitution’s public trust doctrine and the right to a clean and healthful environment that it enshrines. The plaintiffs argued that the state and its authorities had “engaged in an ongoing pattern and practice of promoting, funding, and implementing transportation projects that lock in and escalate the use of fossil fuels, rather than projects that mitigate and reduce emissions”. Arguing that Hawai’i was the most carbon-dependent state in the nation, they sought declaratory and injunctive relief. They made a variety of arguments about the destruction of the Hawai’ian environment, coral reefs, native species of plants and marine life, and beaches; about their health and well-being, including about climate anxiety and about existing health conditions that are aggravated by the effects of climate change; about flooding and its impact on their ability to go to school; about water and food security, including impacts on traditional food sources, traditional and indigenous ways of life and culture; about wildfires; and about climate anxiety.

Claims made:
The plaintiffs note that Article XI, section 1 of the Hawai’i Constitution requires Defendants “[f]or the benefit of present and future generations,” to “conserve and protect Hawai’i’s natural beauty and all natural resources.” Article XI, section 1 further declares that “[a]ll public natural resources are held in trust by the State for the benefit of the people.” The Constitution also explicitly recognizes the right to a clean and healthful environment. Noting the special vulnerability of Hawai’i to climate-related ecological damage, including from sea-level rise, and the disproportionate harm to children and youth, including the lifetime exposure disparities concerning extreme events such as heat waves, wildfires, crop failures, droughts, and floods, they allege that the state of Hawai’i, through its Department of Transportation, has “systematically failed to exercise its statutory and constitutional authority and duty to implement Hawai’i’s climate change mitigation goals and to plan for and ensure construction and operation of a multimodal, electrified transportation system that reduces vehicle miles traveled and greenhouse gas emissions, and helps to eliminate Hawai’i’s dependence on imported fossil fuels”.

Ruling on Motion to Dismiss:
On 6 April 2023, the First Circuit Court rejected the respondent’s motion to dismiss the case for failure to state a claim. The state had argued that the public trust doctrine did not apply to the climate, “because climate is not air, water, land, minerals, energy resource or some other “localized” natural resource.” It had also argued that any efforts by the state would not have an impact on climate change given the scale of the problem.

The Court held in this regard that, in any event, the state as trustee had an obligation to keep its assets, i.e. its trust property, from falling into disrepair. It thereby rejected the argument that climate change was “too big a problem” and the idea that the state had no obligation to reasonably monitor and maintain its natural resources by reducing greenhouse gas emissions and planning alternatives to fossil-fuel heavy means of transportation. The Court also recognized that “the alleged harms are not hypothetical or only in the future. They are current, ongoing, and getting worse.”

On the argument that the applicants did not have a sufficient interest in the case, the Court held that the plaintiffs “stand to inherit a world with severe climate change and the resulting damage to our natural resources. This includes rising temperatures, sea level rise, coastal erosion, flooding, ocean warming and acidification with severe impacts on marine life, and more frequent and extreme droughts and storms. Destruction of the environment is a concrete interests (sic).”

Finding that arguments based on the political question doctrine were premature in this case, and citing case-law finding that this doctrine does not bar claim based on public trust duties, the Court denied the motion to dismiss the case.

Trial date set:
It was announced in August 2023 that trial dates for this case had been scheduled for 24 June-12 July 2024 at the Environmental Court of the First Circuit for Hawai’i. This would make this only the second-ever constitutional rights climate case to go to trial in the United States, after the Held and others v. Montana case. The case will be heard by First Circuit Judge John Tonaki.

Further information:
For the ruling of the First Circuit Court, see here.

Suggested citation:
First Circuit Court of the State of Hawai’i, Navahine F., a Minor v. Dept. of Transportation et al., Civ. No. 1CCV-22-0000631, ruling of 6 April 2023.

Last updated:
16 August 2023

Categories
Children and young people Climate activists and human rights defenders Domestic court Emissions reductions/mitigation European Convention on Human Rights Indigenous peoples rights Indigenous peoples' rights Non-discrimination Paris Agreement Private and family life Prohibition of torture Right to a healthy environment Right to culture Right to health Right to housing Right to life Right to property Russian Federation

Ecodefense and Others v. Russia

Summary:
In 2022, the NGOs Ecodefense and Moscow Helsinki Group, together with a group of individual plaintiffs representing Fridays for Future and the Sami and Itelmen indigenous people, brought an administrative action before the Supreme Court of the Russian Federation seeking to declare the Russian Federation’s climate legislation invalid. They argue that the current measures are not in line with the temperature targets under the Paris Agreement, noting that Russia is currently the fourth biggest global carbon emitter. They submit that Russia is accordingly in violation of its own constitution, as well as of the European Convention on Human Rights (ECHR). Russia ceased to be a party to the ECHR on 16 September 2022.

Key arguments:
The plaintiffs invoke a number of human and constitutional rights, arguing that their right to life, to health care, to a healthy environment (which is recognized by the Russian Constitution), to the protection of land and other natural resources as the basis of the life and activities of indigenous peoples, and to the protection of young people and future generations (based on the principle of equality). They also invoke the prohibition of torture and the right to home, private life and property as well as the prohibition of discrimination and the right to an adequate standard of living.

On this basis, the plaintiffs argue that the existing Russian climate policy measures are not only incompatible with domestic law, but that they also violate Russia’s international legal obligations under the UNFCCC, the Paris Agreement, the UN Covenant on Civil and Political Rights and on Economic, Social and Cultural Rights, and the ECHR. The plaintiffs also contest the emphasis on carbon absorption (and not GHG emissions reductions) in the current Russian strategy, which they argue does not suffice to do Russia’s “fair share” to keep global warming below the Paris Agreement’s targets of 1.5 or 2 degrees Celsius.

Status:
Pending

Further information:
A summary of the plaintiff’s submissions in this case is available via ClimateCaseChart.com.

Suggested citation:
Supreme Court of the Russian Federation, Ecodefense and Others v. Russia, pending case, submitted on 11 September 2022.

Last updated:
4 August 2023

Categories
Australia Children and young people Domestic court Emissions reductions/mitigation Fossil fuel extraction Indigenous peoples rights Non-discrimination Private and family life Right to life Right to property

Waratah Coal Pty Ltd v. Youth Verdict Ltd & Ors

Summary:

The case concerns the applications by Waratah Coal Pty Ltd. (WC) for a ‘mining license’ and an ‘environmental authority’ under the Australian mining regulation and environmental protection legislation. These would allow it to mine coal in areas of the Galilee Basin, including parts of a protected area under the nature conservation law.  

The case reached the Land Court of Queensland on account of objections by environmental groups to WC’s applications. The Land Court of Queensland’s role was to provide a recommendation to the governmental authorities responsible for deciding on the applications after reviewing their merits (considering the compatibility of the proposed project with the environmental laws in Australia). However, the Court also found that the human rights implications of the coal mining project were relevant. The justification for this was that the court was directly bound by the Human Rights Act 2019 to not make a decision that is incompatible with human rights.

In its lengthy judgment, Court concluded on the basis of the evidence available to it and the interests at stake that it could not recommend the approval of WC’s applications.

Claims:

The objectors to WC’s applications raised several contentions in regards to the local and global environmental impacts of allowing coal mining in the Galilee Basin (including its contribution to climate change), as well as interference with private property rights. WC refuted these contentions and found that several issues raised by the objectors were irrelevant to the decision of their applications.  

In regards to climate change, WC disagreed that the emissions produced by foreign consumers of the mined coal are a relevant consideration. It argued that approving the mining of coal does not entail approving its combustion, and that the responsibility for the emissions from the latter falls on importing countries which decide to do so.  WC also argued that the mine will make no difference to total emissions because it would displace lower quality coal with higher greenhouse gas (GHG) emissions.  

Decision:

The Court framed its recommendation as pertaining to the specific coal mining project in question rather than coal mining in general. It was not convinced by the evidence put forth by WC with respect to the adequacy of its plans of offsetting the environmental impacts which would follow from the coal mining project.

In relation to climate change, the Court found that the mitigation of climate change was amongst the public interests which needed to be considered in the balance against the public interest considerations in support of the project (such as economic development). While the Court acknowledged that the project itself would not necessarily put Australia over its greenhouse gas emissions budget or lead to an exceedence of the temperature limits set by the Paris Agreement, Australia’s limited carbon budget and the risks of exceeding the 1.5° and 2°degree C temperature limits, and Queensland’s intention to achieve net-zero emissions by 2050, were strong factors which supported the refusal of the project. 

The Court rejected WC’s contentions in regards to foreign emissions from the combustion of the coal mined by WC, finding that not considering them would be inconsistent with the public interest criterion in the environmental protection legislation.

The Court found that the human rights to life, protection of children, culture of First Nations People, privacy and home, property, and the enjoyment by certain groups of rights without discrimination were engaged by the coal mining project. In its assessment, the project constituted a ‘limit’ to these rights owing to its causal link with climate change which, in turn, affects the enjoyment of these rights. The Court concluded that the economic and other public interest benefits of the project were not sufficient to justify the limitation of human rights which would result from the project.

Links:

For full judgment of 25 November 2022, see here.

Suggested case citation:

Land Court of Queensland, Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21, 25 November 2022, President Fleur Kingham.

Last updated:

03 August 2023.