Category: Indigenous peoples’ rights

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
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
2023 Children and young people Domestic court Emissions reductions/mitigation Evidence Fossil fuel extraction Human dignity Indigenous peoples' rights Public trust doctrine 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. In 2025, 13 of the 16 original plaintiffs filed non-compliance proceedings based on new state legislation.

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.

Proceedings on non-compliance:
On 10 December 2025, a petition on behalf of 13 of the original 16 plaintiffs in the case filed a petition for original jurisdiction with the Montana Supreme Court. They challenged statutes passed by the Montana legislature in 2025, arguing that they weaken the state’s environmental protection laws and undermine the state’s constitutional obligation to protect the environment. The petition seeks a declaration that these statutes are unconstitutional, and to overturn them.

The petition in these follow-up proceedings is available below:

Petition+for+Original+JurisdictionDownload

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
2023 Biodiversity Children and young people Deforestation Domestic court Emissions reductions/mitigation Farming Indigenous peoples' rights Loss & damage Public trust doctrine 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 (HDOT), 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.

Settlement Agreement:
On 20 June 2024, Hawai’i officials announced a groundbreaking Settlement Agreement with plaintiffs, marking a significant milestone. The Court approved the historic Navahine Agreement as fair and in the best interests of the youth plaintiffs. This landmark Agreement upholds children’s constitutional rights to a climate capable of sustaining life and mandates transformative changes in Hawai’i’s transportation system.

The Agreement emphasises HDOT’s responsibility to preserve Hawai’i’s public trust resources and ensure a clean and healthy environment for all residents. By 2045, HDOT is committed to achieving zero emissions across all modes of transportation, including ground, sea, and interisland air travel. The Agreement also includes numerous provisions for immediate and ongoing action by HDOT, such as establishing a Greenhouse Gas Reduction Plan, creating designated units and roles within HDOT, forming a youth council, improving transportation infrastructure budgeting processes, and making immediate, ambitious investments in clean transportation infrastructure. The Court will retain jurisdiction over the agreement until 2045 to oversee compliance with its terms.

This Settlement Agreement sets a precedent as the first of its kind, where government defendants collaborate with youth plaintiffs to address constitutional climate concerns. It commits to the systemic decarbonization of Hawai’i’s transportation sector, aiming to significantly reduce greenhouse gas emissions and lessen dependence on fossil fuels.

Further information:
For the ruling of the First Circuit Court, see here. For the text of Settlement Agreement, 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:
24 June 2024

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
Brazil Deforestation Domestic court Emissions reductions/mitigation Indigenous peoples rights Indigenous peoples' rights Right to a healthy environment Right to culture

PSB et. al. v. Brazil (Amazon deforestation)

Summary:

On 11 November 2020, seven political parties with representation in Brazil’s National Congress brought an action against the Brazilian government before the Federal Supreme Court of Brazil. The petition sought the effective implementation of the public policy to combat deforestation in Brazilian Amazon, viz. the Action Plan for Prevention and Control of the Legal Amazon Deforestation (PPCDAm). The petition is in the nature of an Allegation of Disobedience of Fundamental Precept (ADPF). The ADPF claimed that the government’s actions and omissions in relation to the protection of forests in the Amazon, including within Indigenous Lands and Federal Conservation Units violates constitutional rights and prevents Brazil from fulfilling its climate targets assumed under the Paris Agreement and transposed into national laws.  

The Federal Supreme Court decided in favour of the petitioners and ordered the Federal government to resume the PPCDAm, and strengthen the governmental organs linked to the socio-environmental agenda. The effect of this order was stopped on account of another judge of the Federal Supreme Court seeking a review of the decision.  

Facts of the case:

The petitioners earmarked 2019-2020 as the relevant period for the purposes of the ADPF, since this period is allegedly marked by unprecedented attacks on Article 225 of the Brazilian Constitution which guarantees the right to an ecologically balanced environment. The petitioners alleged that the government abandoned and stopped enforcing the PPCDAm. They further alleged that the government has explicitly refused to cooperate with monitoring agencies and authorities for inspection and control of the use of forests (including the Brazilian Environmental Protection Agency); frozen the financing for the public policy for combating deforestation; and increased environmental deregulation. By way of evidence, the petitioners relied on statistics demonstrating an increase in deforestation notwithstanding a drastic reduction in notices of violations and cease-and-desist orders relating to forest conservation laws. They also relied on budget data of the main agencies which are entrusted with the execution of the public policy on combatting deforestation, and evidence pointing to the non-cooperation of the military in enforcement action.  

Claims:

The petition alleged violations of constitutional rights, viz. the right of present and future generations to an ecologically balanced environment (Article 225), which they argue includes a derivative ‘fundamental the integrity of the climate system or a fundamental right to a stable and secure climate’; rights of indigenous peoples to their traditional lands (Article 231); and cultural rights (Articles 215 and 216). The petitioners also argued that the government’s lack of transparency about implementation of the PPCDAm, its campaign to discredit agencies and institutions which provide data and information on the environment, including Federal agencies, and its denial of deforestation and climate change constitute violations of the right to information.  

The Attorney General argued against the admissibility of the action on multiple grounds, viz. (i) that the action does not concern a constitutional issue and is rather a matter of administrative law, since the reliefs (administrative measures) requested by the petitioners do not directly follow from the text of the Brazilian Constitution; (ii) that admitting the case would run counter to the subsidiarity principle enshrined in the procedural law of the Federal Supreme Court, which requires that it should avoid admitting actions in the nature of an ADPF when there are other effective means of remedying the damage; and (iii) that the procedure for control of constitutionality is not suitable for allowing broad examination of evidence. The Attorney General further refuted the statistical evidence raised by the petitioners arguing that the reduction in number of notices of violations and cease-and-desist orders was attributable to the COVID-19 pandemic. On the merits, the Attorney General contended that the Federal Government had the prerogative to modulate its administrative strategies in line with the legal framework.  

Decision:

On 6 April 2022, Minister Cármen Lúcia of the Federal Supreme Court issued a decision in favour of the petitioners. She rejected the contentions of the Attorney General, deciding that there is no doubt as to the constitutional nature of the issues raised in the action; that a review of the Federal government’s actions in relation to the problem of deforestation in the Brazilian Amazon, which has negative repercussions for the climate, falls within the Federal Supreme Court’s jurisdiction; and the examination of evidence is not practically difficult (owing to the sufficiency of the information provided by governmental agencies and amici curae). The decision notes that non-compliance by Brazilian state organs with commitments under international environmental treaties amounts to a violation of the environmental duties emanating from the Constitution. Reading the principle of non-retrogression into Article 225 of the Constitution, the decision identifies acts of the Federal Government which were contrary to such principle.  

Relief:

The Court declared that the situation regarding the illegal deforestation of the Amazon rainforest and the omissions of the Brazilian State in relation to its protective functions was unconstitutional. It ordered the Federal Government to present a detailed plan for the implementation of the PPCDAs and effective protection measures relating to the Amazon forest and the rights of indigenous peoples and other inhabitants in protected areas, within 30 days from the decision. The decision also lists concrete benchmarks and targets that the Federal Government’s plan ought to be based on and seek to achieve.  

Status:

Immediately following Minister Cármen Lúcia’s decision, Minister André Mendonça of the Federal Supreme Court requested a review of that decision, which effectively blocked the decision. As a result, the effect of the decision requiring the Federal Government to take certain actions within a set date stands suspended. The case is still pending before the Federal Supreme Court.  

Links:

Petition (accessible via Climate Case Chart: Portuguese, Unofficial English translation).

Decision (in Portuguese).

For further procedural information, visit Supremo Tribunal Federal.  

Suggested citation:

Brazilian Federal Supreme Court, PSB et al. v. Brazil, case ADPF 760, decision of 6 April 2022.

 Last updated:

03 August 2023.

Categories
Adaptation Biodiversity Children and young people Climate activists and human rights defenders Climate-induced displacement Deforestation Emissions reductions/mitigation Evidence Gender / women-led Indigenous peoples rights Indigenous peoples' rights Inter-American Human Rights System Loss & damage Paris Agreement Right to a healthy environment Right to health Right to life Right to property Rights of nature Vulnerability

Climate Advisory Opinion of the IACtHR (OC 32/2025)

Summary:
On 3 July 2025, the Inter-American Court of Human Rights (IACtHR) issued its long-awaited advisory opinion on climate change, at the request of the governments of Chile and Colombia.

Advisory opinion request:
On 9 January 2023, Colombia and Chile jointly filed a request for an advisory opinion on the climate emergency and human rights to the IACtHR. The two governments requested clarification of the scope of States’ obligations, both in their individual and collective dimensions, in responding to the climate emergency within the framework of international human rights law, taking into account the different effects that climate change has on people in different regions and on different population groups, nature and human survival. The governments asked the Court to answer a series of questions grouped into six thematic areas, namely on:

A. The scope of States’ obligations to protect and prevent, including regarding their obligations to mitigate, adapt, regulate and monitor, and their response to loss and damage;

B. States’ obligations to protect the right to life given the existing climate science, and taking into account the right of access to information and transparency of information, including under the Escazú Agreement;

C. States’ obligations with respect to the rights of children and new generations, given especially the vulnerability of children;

D. On the State’s obligations concerning consultative and judicial procedures, taking into account the limited remaining carbon budget;

E. The protective and preventative obligations concerning environmental and land rights defenders, as well as women, indigenous peoples and Afro-descendant communities; and

F. Shared and differentiated obligations and responsibilities in terms of the rights of States, the obligation of cooperation and given the impacts on human mobility (migration and forced displacement of people).

Extended summary of the request:
In their request to the IACtHR, the two governments submitted that they are already dealing with the consequences of the climate emergency, including the proliferation of droughts, floods, landslides and fires. These, they submitted, underscore the need for a response based on the principles of equity, justice, cooperation and sustainability, as well as human rights. The two governments noted that climate change is already putting humans and future generations at risk, but that its effects are not being experienced uniformly across the international community. Instead, given their geography, climatic conditions, socioeconomic conditions and infrastructure, they are particularly being felt in the most vulnerable communities, including several countries in the Americas. They emphasized that these effects are not proportionate to these countries’ and communities’ contribution to climate change.

The governments, in their request, emphasized the relevance of the right to a healthy environment, as well as other interrelated substantive and procedural rights (affecting life, human survival and future generations). They reviewed the existing scientific evidence concerning the impacts and progression of climate change from the IPCC, and noted the vulnerability of the Andean region. The two governments referred to the 2017 Advisory Opinion of the IACtHR, which recognized the right to a healthy environment as an autonomous and individual right, and referred to the negative effects of climate change. However, they argued, there is a need to further clarify the human rights impacts of climate change, and corresponding obligations. In this regard, they raised the existence also of collective rights for the protection of nature under international human rights and environmental law, and cited the need to protect fundamental biomes like the Amazon and to understand States’ shared but differentiated responsibilities in a way that copes with loss and damage. The two governments invited the Court to set out clear standards against the background of litigation and related developments.

Consultation procedure:
In accordance with the Rules of Procedure of the IACtHR (Art. 73(3)), all interested parties (individuals and organizations) are invited to present a written opinion on the issues covered in the advisory opinion request. The President of the Court has established 18 August 2023 as the deadline for doing so. More information is available here.

Advisory opinion of 3 July 2025:
On 3 July 2025, following an oral hearing, the IACtHR issued its advisory opinion in these proceedings (in Spanish, with the text in English to follow). In a 234-page opinion, the Court addressed the questions raised by the governments of Chile and Colombia in their request.

The advisory opinion covers a wide range of relevant issues and obligations, and provides in-depth clarifications of the legal issues raised. It covers, in short:

  • The procedure, competence of the Court and admissibility of the request, as well as a number of other preliminary considerations, including about the (scientific and other) sources used by the Court and the scope of the opinion.
  • The facts of the climate emergency, including its causes, differential contributions of different actors, and its impacts on natural systems, humans, vulnerable territories and ecosystems, as well as the need for urgent action, the possibilities and need for mitigation, the need for adaptation, and the seriousness of climate impacts.
  • The complexity of required responses, including discussions of resilience and sustainable development as a vehicle for protection of both human rights and the environment.
  • The international legal framework around climate change, applicable norms and frameworks, including international investment law, human rights, international environmental law and climate change treaties. The Court also reviewed the case-law of other adjudicators in the context of climate change.
  • The obligations of States in the context of the climate emergency, including the scope of human rights obligations to respect rights, protect rights (including a reinforced due diligence obligation), and the obligation to take measures to ensure progressive realization of economic, social and cultural rights. This includes discussion of various substantive rights, including particularly the right to a healthy environment but also the rights to life, physical integrity, health, private and family life, property and home, freedom of movement and residence, water and food, work and social security, culture and education. The advisory opinion also includes consideration of procedural rights and the link between these rights and democracy, the right to science and recognition of local knowledge, the right of access to information (and combatting disinformation), the right to political participation and access to justice as well as protection of environmental defenders and equality and non-discrimination norms. In this latter regard, the opinion considers the differential protection owed to children and youth, to Indigenous and tribal peoples, Afrodescendant communities, peasants and those involved in fisheries. It also considers the differential effect of climate change and the implications for fight against poverty.

Opinion of the Court:
Appended to the Court’s extensive consideration of the relevant issues and obligations is its concrete opinion, which reads as follows (translation from the original Spanish, to be replaced with the English-language translation by the Court once available):

THE COURT DECIDES
Unanimously, that:

It is competent to issue the present Advisory Opinion, in the terms of paragraphs 14 to 23.

AND IS OF THE OPINION
Unanimously, that:

  1. According to the best available science, the current situation constitutes a climate emergency due to the accelerated increase in global temperature, produced by diverse activities of anthropogenic origin, undertaken unequally by the States of the international community, which incrementally affect and seriously threaten humanity and, especially, the most vulnerable people. This climate emergency can only be adequately addressed through urgent and effective actions for mitigation, adaptation and progress towards sustainable development, articulated with a human rights perspective, and under the prism of resilience, in the terms of paragraphs 183 and 205 to 216.

    Unanimously, that:
  2. By virtue of the general obligation to respect rights, States have the obligations indicated in paragraphs 219 to 223.

    Unanimously, that:
  3. Under the general obligation to ensure rights, States have an obligation to act in accordance with a standard of enhanced due diligence to counteract the human causes of climate change and protect people under their jurisdiction from climate impacts, in particular those who are most vulnerable, in the terms of paragraphs 225 to 237.

    By six votes in favor and one against, that:
  4. By virtue of the general obligation to ensure the progressive development of economic, social, cultural and environmental rights, States must allocate the maximum available resources to protect persons and groups who, because they are in situations of vulnerability, are exposed to the most severe impacts of climate change, in the terms of paragraphs 238 to 243.
    Judge Patricia Pérez Goldberg dissents.

    Unanimously, that:
  5. By virtue of the general obligation to adopt domestic law provisions, States must integrate into their domestic legal framework the necessary regulations to ensure the respect, guarantee and progressive development of human rights in the context of the climate emergency, in the terms of paragraphs 244 to 246.

    Unanimously, that:
  6. By virtue of the obligation to cooperate, the States are obliged to cooperate in good faith to advance in the respect, guarantee and progressive development of human rights threatened or affected by the climate emergency, in the terms of paragraphs 247 to 265.

    By four votes in favor and three against, that:
  7. The recognition of Nature and its components as subjects of rights constitutes a normative development that makes it possible to reinforce the protection of the integrity and functionality of ecosystems in the long term, providing effective legal tools in the face of the triple planetary crisis and facilitating the prevention of existential damage before it becomes irreversible. This conception represents a contemporary manifestation of the principle of interdependence between human rights and the environment, and reflects a growing trend at the international level aimed at strengthening the protection of ecological systems against present and future threats, in accordance with paragraphs 279 to 286.
    Judge Nancy Hernández López, Judge Humberto Sierra Porto and Judge Patricia Pérez Goldberg dissenting.

    By four votes in favor and three against, that:
  8. By virtue of the principle of effectiveness, the imperative prohibition of anthropogenic conducts that may irreversibly affect the interdependence and vital balance of the common ecosystem that makes the life of the species possible constitutes a norm of jus cogens, in accordance with paragraphs 287 to 294.
    Judge Nancy Hernández López, Judge Humberto Sierra Porto and Judge Patricia Pérez Goldberg dissenting.

    By a vote of five in favor and two partially against, that:
  9. The right to a healthy climate, understood as a component of the right to a healthy environment, protects in its collective dimension the present and future humanity, as well as Nature, in the terms of paragraphs 298 to 316.
    Judge Nancy Hernández López and Judge Patricia Pérez Goldberg dissenting in part.

    By six votes in favor and one partially against, that:
  10. By virtue of the right to a healthy climate, States must protect the global climate system and prevent human rights violations derived from its alteration. Therefore, they must mitigate GHG emissions, which implies (i) adopting regulations on the matter that define a mitigation goal and a mitigation strategy based on human rights, as well as regulating the behavior of companies, in the terms of paragraphs 323 to 351; (ii) adopting mitigation supervision and control measures, in the terms of paragraphs 352 to 357, and (iii) determining the climate impact of projects and activities when appropriate, in the terms of paragraphs 358 to 363.
    Judge Patricia Pérez Goldberg dissenting in part.

    Unanimously, that:
  11. By virtue of the right to a healthy environment, States must (i) protect nature and its components from the impacts of climate change, and (ii) establish a strategy to move towards sustainable development, in the terms of paragraphs 364 to 376.

    By six votes in favor and one partially against, that:
  12. By virtue of the rights to life, personal integrity, health, private and family life, property and housing, freedom of residence and movement, water and food, work and social security, culture and education, as well as all other substantive rights threatened by climate impacts, States have an enforceability obligation, States have an immediately enforceable obligation to define and update, as ambitiously as possible, their national adaptation goal and plan, in the terms of paragraphs 384 to 391, as well as the duty to act with enhanced due diligence in compliance with the specific duties set forth in paragraphs 400 to 457.
    Judge Patricia Pérez Goldberg dissenting in part.

    Unanimously, that:
  13. By virtue of the democratic principle, the States must strengthen the democratic rule of law as an essential framework for the protection of human rights, the effectiveness of public action, and open and inclusive citizen participation, also ensuring the full exercise of procedural rights, in the terms of paragraphs 460 to 469.

    By six votes in favor and one partially against, that:
  14. By virtue of the human right to science and the recognition of local, traditional and indigenous knowledge, protected by Articles 26 of the Convention and 14.2 of the Protocol of San Salvador, all persons have the right to access the benefits of measures based on the best available science and on the recognition of local, traditional or indigenous knowledge, in the terms of paragraphs 471 to 487.
    Judge Patricia Pérez Goldberg dissenting in part.

    Unanimously, that:
  15. Under the right of access to information, States have obligations regarding (i) production of climate information, in the terms of paragraphs 501 to 518; (ii) disclosure of information relevant to the protection of human rights in the face of climate change, in the terms of paragraphs 519 to 523, and (iii) to adopt measures against disinformation, in the terms of paragraphs 524 to 527.

    Unanimously, that:
  16. Under the right to political participation, States must guarantee processes that ensure the meaningful participation of people under their jurisdiction in decision-making and policies related to climate change, as well as ensure prior consultation of indigenous and tribal peoples, where appropriate, in the terms of paragraphs 530 to 539.

    By four votes in favor and three partially against, that:
  17. By virtue of the right of access to justice, the States must ensure central aspects regarding (i) provision of sufficient means for the administration of justice in this context, (ii) application of the pro actione principle; (iii) celerity and reasonable time in judicial proceedings; (iv) adequate provisions regarding standing, (v) evidence and (vi) reparation, as well as (vii) application of inter-American standards; in the terms of paragraphs 542 to 560.
    Judge Nancy Hernández López, Judge Humberto Sierra Porto and Judge Patricia Pérez Goldberg dissenting in part.

    Unanimously, that:
  18. By virtue of the right to defend human rights, States have a special duty to protect environmental defenders that translates into specific obligations, among others, to protect them, investigate and, if necessary, punish attacks, threats or intimidations they suffer, and to counteract the “criminalization” of the defense of the environment, in the terms of paragraphs 566 to 567, and 575 to 587.

    Unanimously, that:
  19. States should adopt measures aimed at addressing the way in which the climate emergency exacerbates inequality and has a differentiated impact on people living in multidimensional poverty, in the terms of paragraphs 626 and 627.

    By four votes in favor and three partially against, that:
  20. States have specific obligations in situations of special vulnerability such as those faced by (i) children, and (ii) indigenous peoples, tribes, Afro-descendants, and peasant and fishing communities, (iii) people who suffer differentiated impacts in the context of climate disasters, in the terms of paragraphs 599 to 602, and 604; 606 to 613, and 614 to 618. Likewise, States must adopt measures to protect persons who do not belong to the traditionally protected categories but who are in a situation of vulnerability for dynamic or contextual reasons, in the terms of paragraphs 628 and 629.
    Judge Nancy Hernández López, Judge Humberto Sierra Porto and Judge Patricia Pérez Goldberg partially dissent.

Full text of the advisory opinion:

The English translation of the full text of the advisory opinion is available below.

seriea_32_en (1)Download

Further information:

  • A summary of the advisory opinion (in Spanish) is available here.
  • A discussion of the advisory opinion by Patricia Tarre Moser and Juan Auz on Estudia Derechos Humanos (in Spanish) is available here.
  • The text of the advisory opinion request is available here (in the official Spanish version as filed with the Court) and it has also been translated to English, French and Portuguese by the Court’s Secretariat.
  • For a comment on the request by Juan Auz and Thalia Viveros-Uehara, see ‘Another Advisory Opinion on the Climate Emergency? The Added Value of the Inter-American Court of Human Rights’, EJIL:Talk! Blog, 2 March 2023, available here.
  • For a comment on the request from Maria Antonia Tigre, see ‘A Request for an Advisory Opinion at the Inter-American Court of Human Rights: Initial Reactions’, Climate Law Blog, 17 February 2023, available here.

Suggested citation:
Inter-American Court of Human Rights, Advisory Opinion on the Climate Emergency and Human Rights, OC 32/2025, 3 July 2025.

Last updated:
4 July 2025.

Categories
2020 Canada Domestic court Emissions reductions/mitigation Indigenous peoples rights Indigenous peoples' rights Non-discrimination Right to life Separation of powers

Lho’imggin et al. v. Canada

Summary:
This case was brought by two houses of the Wet’suwet’en indigenous group against Canada on 10 February 2020. The plaintiffs argue that the Canadian government has violated their constitutional and human rights by failing to meet its international commitments to reduce greenhouse gas emissions. They argue that the effects of warming are already being felt on their territories, including in the form of negative health effects. They also argue that the historical treatment and ongoing discrimination against indigenous peoples in Canada exacerbate the trauma of climate change. They invoke, among other things, their rights to life, liberty and security of person, and the right to equality.

The Federal Court granted a motion to strike out the claim on 16 November 2020, finding that the case was not justiciable, lacked a reasonable cause of action, and did not seek legally available remedies. The plaintiffs appealed to the Federal Court of Appeal on 10 December 2020; the appeal was still pending in August 2022.

Relief sought:
The applicants seek several different forms of relief. These include declaratory relief concerning Canada’s obligations to reduce its emissions and respect the plaintiffs’ rights, including the rights of future member of the Wet’suwet’en indigenous group. The plaintiffs also seek an order requiring the government to amend its environmental assessment statutes that apply to extant high GHG emitting projects, and an order requiring a complete, independent and timely annual account of Canada’s cumulative greenhouse gas emissions in a format that allows a comparison to be made with Canada’s fair carbon budget.

Findings of the Federal Court:
Among other things, the Federal Court found that “this matter is not justiciable as it is the realm of the other two branches of government. This broad topic is beyond the reach of judicial interference. [It did] not find that there is a sufficient legal component to anchor the analysis as this action is a political one that may touch on moral/strategic/ideological/historical or policy-based issues and determinations within the realm of the remaining branches of government.” It also found, concerning this case, that “not only is there not sufficient legality, but the remedies sought are not appropriate remedies, but rather solutions that are appropriate to be executed by the other branches of government.”

Further reading:
The full text of the judgment of the Federal Court is available via climatecasechart.

Suggested citation:
Federal Court of Ottowa, Lho’imggin et al. v. Her Majesty the Queen, Order of 16 November 2020, 2020 FC 1059.

Categories
Adaptation Australia Climate-induced displacement Human Rights Committee Imminent risk Indigenous peoples rights Indigenous peoples' rights Private and family life Right to culture Right to life Sea-level rise Standing/admissibility Vulnerability

Daniel Billy et al. v. Australia (Torres Straits Islanders case)

Summary:
This petition against Australia was brought to the UN Human Rights Committee by a group of eight indigenous Torres Straits Islanders in 2019, in their own names and on behalf of their children. In their petition, they argued that the Australian government had violated their rights, as inhabitants of low-lying islands, under the International Covenant on Civil and Political Rights (ICCPR) because of its inaction in addressing climate change (failure to mitigate emissions and to take adaptation measures).

Rights at stake:
The applicants in this case invoked a series of rights in the ICCPR, on behalf of themselves and their children, contesting the respondent State’s failure to adopt mitigation measures to reduce greenhouse gas emissions and cease the promotion of fossil fuels. To support this, they drew on Article 27 (the right to culture), Article 17 (the right to be free from arbitrary interference with privacy, family and home), and Article 6 (the right to life) ICCPR. They argued that the indigenous peoples of the Torres Strait Islands, especially those who reside on low-lying islands, are among the most vulnerable to the impacts of climate change. They considered that the Australian government must ensure both mitigation and adaptation measures in order to adequately protect their rights. Previously, the Torres Strait Regional Authority (TSRA), a government body, had stated that “the effects of climate change threaten the islands themselves as well as marine and coastal ecosystems and resources, and therefore the life, livelihoods and unique culture of Torres Strait Islanders.”

Outcome:

On 21 July 2022, the Human Rights Committee adopted its Views in this case.

Observations of the State:

The Australian Government argued that the case was inadmissible, contesting the relevance of climate-related international agreements and its own ability to be held (legally or practically) responsible for climate-related harms. It also submitted that it was not possible to attribute climate change to the State party under international human rights law.

The HRC’s considerations on the admissibility:

On the issue of the exhaustion of domestic remedies, the Government’s position was that it did not owe a duty of care for failing to regulate environmental harm, and that it was not required to provide a remedy where (including in the present case) it understood there to be no breach of ICCPR rights. This question was accordingly reserved to the examination of the merits.

Concerning mitigation measures, the HRC noted that Australia is and has been a major greenhouse gas emitter, and ranks high on economic and development indices. As a result, it found that the alleged (in)actions fell under its jurisdiction under articles 1 or 2 of the Optional Protocol.

Concerning the imminence of the risk concerned, and accordingly the issue of victim status / standing, the Committee found that the authors of this Communication, “as members of peoples who are the longstanding inhabitants of traditional lands consisting of small, low-lying islands that presumably offer scant opportunities for safe internal relocation – are highly exposed to adverse climate change impacts”. Given the uncontested dependence of their lives and cultures on natural resources and phenomena, and their inability to finance adaptation measures on their own, the authors were considered to be “extremely vulnerable to intensely experiencing severely disruptive climate change impacts”. Given the authors’ allegations of serious ongoing adverse impacts, the HRC declared their claims under articles 6, 17, 24 (1) and 27 of the ICCPR admissible.

Merits:

Article 6

The Committee recalled that the right to life cannot be interpreted restrictively, and that it requires States to adopt protective measures (i.e. that it entails positive obligations). It recalled its own General Comment No. 36, issued in 2018, in establishing that the right to life also extends to reasonably foreseeable threats to life, including adverse climate change impacts and environmental degradation.

The Committee rejected Australia’s allegation that the interpretation of the ICCPR contained in this General Comment was not compatible with the rules of treaty interpretation under general international law. It then went on to recall its own earlier Teitiota v. New Zealand case (on climate-induced displacement), ultimately finding that the authors were not currently facing health impacts or real and reasonably foreseeable risks of being exposed harms to their right to life. The Committee also noted that the right-to-life claim being made largely related to the authors’ ability to maintain their culture, which falls under article 27 ICCPR.

Regarding the authors’ submission that, absent urgent action, their islands will become uninhabitable within 10 to 15 years, the Committee noted the adaptation and mitigation measures currently planned or being taken, and found that the time frame of 10 to 15 years could allow for additional protective measures or relocation programmes. As a result, it found that there had been no violation of the right to life in this case.

Article 17

The authors claimed that climate change already affects their private, family and home life, given that they may be forced to abandon their homes. The Committee considered that the authors’ dependence on marine and terrestrial resources and ecosystems is a component of their traditional indigenous way of life, falling under the scope of Article 17 ICCPR.

Considering the adaptation measures and related plans in place, the Committee noted the existence of unexplained delays in seawall construction and the lack of explanation concerning the loss of marine resources, crops and fruit trees. It noted the ongoing inundation of villages and ancestral burial lands; the withering of traditional gardens through salinification; the decline of nutritionally and culturally important marine species; coral bleaching and ocean acidification; and the authors’ anxiety and distress. The Committee also noted the importance of community lands for the authors’ most important cultural ceremonies. It accordingly found that:

“that when climate change impacts – including environmental degradation on traditional [indigenous] lands (…) – have direct repercussions on the right to one’s home, and the adverse consequences of those impacts are serious because of their intensity or duration and the physical or mental harm that they cause, then the degradation of the environment may adversely affect the well-being of individuals and constitute foreseeable and serious violations of private and family life and the home.”

Finding that Australia had failed to discharge its positive obligation to implement adequate adaptation measures to protect the authors’ home, private life and family, the HRC found a violation of the authors’ rights under article 17 ICCPR.

Article 27

Article 27 ICCPR recognizes the right of members of minority indigenous groups to the enjoyment of culture, and protects the survival and continued development of their cultural identity. Interpreted in the light of the UN Declaration on the Rights of Indigenous Peoples, this right enshrines the inalienable right of indigenous peoples to enjoy their traditional territories and natural resources. Here, the authors argued that their ability to maintain their culture has already been impaired due to climate change impacts, which have eroded their traditional lands and natural resources, for which there is no substitute on mainland Australia. The Committee found that these climate impacts represent a threat that was reasonably foreseeable by the State party, as the authors’ community had been raising the issue since the 1990s. While noting existing seawall construction projects, it considered that the delay in initiating these projects indicated an inadequate response by the State party to the threat in question. It found that the failure to adopt timely and adequate adaptation measures “to protect the authors’ collective ability to maintain their traditional way of life, to transmit to their children and future generations their culture and traditions and use of land and sea resources discloses a violation of the State party’s positive obligation to protect the authors’ right to enjoy their minority culture.” Accordingly, it found a violation of Article 27 ICCPR.

As a result of its findings concerning Articles 17 and 27 ICCPR, the HRC considered it not necessary to examine the authors’ remaining claims under article 24 (1) ICCPR.

Remedies:

Under Article 2 (3) (a) ICCPR, the HRC noted that the State was required to make full reparation to the authors, which meant providing adequate compensation; engaging in meaningful consultations with their communities to conduct needs assessments; continuing its adaptation measures and monitoring and reviewing the effectiveness of existing measures; and taking steps to prevent similar violations in the future. The Committee requested the State to provide it with information about the measures taken in this regard within 180 days.

Separate opinions:

Several HRC members appended individual opinions to the Views. These include:

  • The individual opinion by Committee Member Duncan Laki Muhumuza, arguing that there had been a violation of Article 6 ICCPR (the right to life);
  • The individual opinion by Committee Member Gentian Zyberi, concurring but arguing that the Committee had focused too heavily on adaptation measures, and should instead have more clearly linked the right under Article 27 ICCPR to mitigation measures;
  • The joint opinion by Committee Members Arif Bulkan, Marcia V. J. Kran and Vasilka Sancin (partially dissenting), who argued that there had been a violation of Article 6 ICCPR (the right to life). They argued in particular that the “real and foreseeable risk” standard employed by the majority interpreted Article 6 too restrictively, and was inappropriate here as it had been borrowed from the dissimilar context of its refugee cases (Teitiota v. New Zealand, the HRC’s first climate-induced displacement case).

Full decision:

The HRC’s Views are available here.

Further reading:

  • Maria Antonia Tigre, ‘U.N. Human Rights Committee finds that Australia is violating human rights obligations towards Torres Strait Islanders for climate inaction’, available here.
  • Verena Kahl, ‘Rising Before Sinking: The UN Human Rights Committee’s landmark decision in Daniel Billy et al. v. Australia,’ Verfassungsblog, 3 October 2022, available here.
  • Nicole Barrett and Aishani Gupta, ‘Why Did the UN Human Rights Committee Refuse Broader Protections for Climate Change Victims?’, Opinio Juris blog, 5 October 2022, available here.
  • Christina Voigt, ‘UNHRC is Turning up the Heat: Human Rights Violations Due to Inadequate Adaptation Action to Climate Change’, EJIL:Talk! Blog, 26 September 2022, available here.
  • Monica Feria-Tinta, ‘Torres Strait Islanders: United Nations Human Rights Committee Delivers Ground-Breaking Decision on Climate Change Impacts on Human Rights’, EJIL:Talk! Blog, 27 September 2022, available here.

Suggested citation:

UN Human Rights Committee, Daniel Billy et al. v. Australia, Communication No. 3624/2019, 22 September 2022, UN Doc. CCPR/C/135/D/3624/2019.

Categories
2021 Children and young people Domestic court Emissions reductions/mitigation Fossil fuel extraction Imminent risk Indigenous peoples' rights Non-discrimination Right to life Right to property Sea-level rise United States of America

Aji P. and Others v. the State of Washington

Summary:
This case was brought by 13 young people aged between 8 and 18 who sued the US State of Washington, its Governor, and various other state agencies, arguing that the state had “injured and continue[d] to injure them by creating, operating, and maintaining a fossil fuel-based energy and transportation system that [the State] knew would result in greenhouse gas (“GHG”) emissions, dangerous climate change, and resulting widespread harm.” In doing so, they invoked their “fundamental and inalienable constitutional rights to life, liberty, property, equal protection, and a healthful and pleasant environment, which includes a stable climate system that sustains human life and liberty.” They also invoked the impacts on indigenous peoples’ rights. The plaintiffs requested the judiciary to “[o]rder [the state] to develop and submit to the Court . . . an enforceable state climate recovery plan”.

A number of amici filed briefs in the case. For example, the Swinomish Indian Tribal Community, Quinault Indian Nation, and Suquamish Tribe argued that local tribes were already seeing impacts on their traditional lands and abutting marine waters. The Environmental Law Alliance Worldwide (ELAW-US) noted the well-documented impacts of climate change on human and constitutional rights. The League of Women Voters of Washington argued that access to judicial action was particularly important for minors who did not enjoy access to the right to vote. And a group of environmental NGOs submitted that “the right to a healthful and pleasant environment underlies our continued ability to claim our explicitly-guaranteed rights to life and liberty.”

On 8 February 2021, the Court of Appeals of the State of Washington held that it “firmly believe[d] that the right to a stable environment should be fundamental.” It also recognized “the extreme harm that greenhouse gas emissions inflict on the environment and its future stability.” However, it held that “it would be a violation of the separation of powers doctrine for the court to resolve the Youths’ claims.” It accordingly dismissed the claim.

On 6 October 2021, the Supreme Court of the State of Washington denied the petition for review in this case. González, C.J. (dissenting) noted that the plaintiffs “asked this court to recognize a fundamental right to a healthful and pleasant environment that may be inconsistent with our State’s maintenance of a fossil-fuel-based energy and transportation system that it knows will result in greenhouse gas emissions. These greenhouse gases hasten a rise in the earth’s temperature. This temperature change foreshadows the potential collapse of our environment. In its place is an unstable climate system, conceivably unable to sustain human life and continued enjoyment of ordered liberty under law. Today, we have an opportunity to consider whether these are the sorts of harms that are remediable under Washington’s law and constitution. We should have granted review to decide that question”.

Suggested citation:
Court of Appeals of the State of Washington (USA), Aji P. v. State, 16 Wash. App. 2d 177, 480 P.3d 438, 16 Wn. App. 2d 177 (Wash. Ct. App. 2021).

Last updated:
5 July 2022