Category: Paris Agreement

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

Declic et al. v. The Romanian Government

Summary:

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

Claim:

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

Links:

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

Status of the case:

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

Suggested citation:

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

Last updated:

03 November 2023.

Categories
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
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
2023 Domestic court Emissions reductions/mitigation Margin of appreciation Paris Agreement Separation of powers Spain Standing/admissibility Victim status

Greenpeace Spain et al. v. Spain

Summary:
In 2020, three environmental NGOs (Greenpeace, Ecologistas en Acción and Oxfam Intermón) challenged the level of ambition of the Spanish government’s domestic greenhouse gas emissions reductions targets in what has been described as the first-ever Spanish climate case. At the material time, the Spanish ambition was to reduce emissions by 23% by 2030 (compared to 1990 levels); the three NGOs argued that this target should have been more ambitious, at 55%. In the absence of any response to the challenge by the Government, in September 2020, the three NGOs filed an administrative appeal to the Spanish Supreme Court. In 2023, the Supreme Court dismissed the case, with the plaintiffs announcing their intention to seize the European Court of Human Rights in Strasbourg.

Claims made:
These proceedings challenged delays in the adoption of the National Integrated Energy and Climate Plan (‘Plan Nacional Integrado de Energía y Clima’ or PNIEC), as required under European Union law (by 31 December 2019, see EU Regulation 2018/1999), as well as its low level of amibition. The Spanish government missed this deadline, only transmitting its PNIEC to the European Commission on 31 March 2020. In their pleadings, the applicants argued that the Spanish state must take more ambitious measures in order to guarantee respect for human and environmental rights for present and future generations.

Ruling:
On 24 July 2023, the case was decided by the Spanish Supreme Court, which rejected the appeal in full. The Court noted the formal nature of the complaints about delays in the adoption of the plan, and emphasized the short time frame for the adoption of the PNIEC imposed by EU law, as well as the complexity of decision-making within multi-level governance frameworks, which meant that the plan could not be considered void as a whole.

As concerns the level of amibition of the plan, the Supreme Court noted the need to decide this case under Spanish law, and not the case-law from other jurisdictions that had been cited by the applicants; it also noted the need to respect the concrete legal obligations that Spain had assumed under the Paris Agreement, as well as the need to balance climate action with the interests of a sustainable economy.

The Court held that the State had a wide margin of discretion in this context, and that the case was asking it to exceed its role by not only declareing an acceptable emissions target, but accordingly by imposing far-reaching changes to Spain’s economic policy. It noted that while the targets under the Paris Agreement were minimum targets (“at least”), as were those under EU law, the Spanish legislator had chosen to adhere to these minima, and not to exceed them.

On the fundamental rights claim, the Court referred to EU law on locus standi, especially the Armando Carvalho case. It emphasized the need to prevent voiding the criterion of direct and individual concern. Accordingly, it found that the alleged infringement of human rights by the PNIEC was not sufficient in itself to render these claims admissible. The decision to adhere to the minima set out under EU law could not be considered arbitrary, but instead constituted a legitimate exercise of the Spanish government’s constitutional powers.

Further proceedings:
After the ruling was issued, Lorena Ruiz-Huerta, counsel for the plaintiff organizations, announced their intention to take this case to the European Court of Human Rights in Strasbourg in order to “force the State to protect the human rights that are seriously threatened by climate change”.

Suggested citation:
Spanish Supreme Court, Greenpeace Spain et al. v. Spain, no. 1079/2023, 24 July 2023, ECLI:ES:TS:2023:3556.

Further information:
For the Supreme Court’s ruling (in Spanish), see here.

The applicants’ pleadings (in Spanish) are available via ClimateCaseChart.com.

Last updated:
4 August 2023

Categories
2023 Business responsibility / corporate cases Domestic court Emissions reductions/mitigation Imminent risk Paris Agreement Private and family life Right to a healthy environment Right to health Right to life Standing/admissibility Victim status

Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Kobe Steel Ltd., et al.

Summary:
On 20 March 2023, a first-instance court in Japan heard a civil case concerning the construction and operation of new coal-fired power plants brought by the citizens of Kobe. Two weeks previously, on 9 March 2023, the Japanese Supreme Court refused to hear its first-ever administrative climate case concerning the same set of facts, giving no substantive reasons for doing so. In the civil case, which was filed in 2018, 40 citizens of Kobe brought suit against three corporations involved in the construction and operation of the plants. They argued that these plants would impact themtheir personal rights and right to a peaceful life both through air pollution and through their contribution to the climate change.

As Grace Nishikawa and Masako Ichihara have explained on the Sabin Center’s Climate Law Blog, ‘personal rights’ are established through case-law and frequently enter into play in environmental cases. They protect personal well-being, including the rights to life, bodily integrity, health, and a peaceful life (the last of which the authors compare to the right to respect for private and family life under Article 8 of the European Convention of Human Rights). The plaintiffs in this case invoked these personal rights, arguing that the coal plants would aggravate climate change, leading to extreme heat and rainfall events that would directly affect them. In their submissions, they made arguments based on international and comparative law, mentioning carbon budgets, the Paris Agreement, the Dutch Urgenda case, and the Glasgow Climate Pact.

In its first-instance judgment, the Kobe District Court accepted that greenhouse emissions, including those from the plant, contribute to climate change and can violate personal rights. However, it found the risk of harm to the individual plaintiffs to be too uncertain, and rejected their claim, noting the difficulty of causally attributing responsibility for damage related to climate change.

Concerning the alleged violation of the right to a peaceful life, which the plaintiffs argued contains a right to a healthy and peaceful life, the Court likewise rejected this claim, for the same reasons, finding that fears about climate change were not concrete enough to constitute human rights violation. The Court also noted that there was no legally recognized right stable climate in Japan.

Concerning the additional air pollution complaint, the Court found that this was not serious enough to constitute a concrete danger to the plaintiffs’ rights. It also did not engage with the plaintiffs’ request for a preliminary injunction halting the operation of the coal plants.

Appeal:
Climate Case Chart reports that an appeal in this case was filed on 4 January 2023.

Further reading:
The above draws on the following two key sources:

The original case documents (in Japanese) are available via Climate Case Chart.

Suggested citation:
Kobe District Court, Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Kobe Steel Ltd., et al., Judgment of 20 March 2023.

Last updated:
20 July 2023

Categories
Domestic court Emissions reductions/mitigation Human dignity Paris Agreement Right to a healthy environment Right to life South Korea

Climate Crisis Emergency Action v. South Korea (Byung-In Kim et al. v. South Korea)

Summary:
In October 2021, the South Korean NGO “Climate Crisis Emergency Action” filed a constitutional complaint on behalf of 130 parties concerning the country’s greenhouse gas emissions reductions targets as set out in the South Korean Basic Act on Carbon Neutrality and Green Growth (the Carbon Growth Act), which was promulgated on 24 September 2021. On 29 August 2024, the Constitutional Court of South Korea issued its judgment in this and three other mitigation cases.

In a draft of the application form available online (in Korean), the applicant organization noted the Korean National Assembly’s statement in support of the 1.5 degree emissions reductions target under the Paris Agreement, and the insufficiency of the domestic mitigation action to meet that target. It submitted that the domestic target is “an arbitrary and irresponsible reduction target set in defiance of the standards agreed upon by the scientific community and the international community.” Noting the State’s “duty to protect the basic rights of its citizens” (in Article 10 of the South Korean Constitution), it submitted that fundamental rights are already being violated and will continue to be violated, and that higher legislative ambition is required.

Claims made (as per the version of the application made available here):
The plaintiffs in this case contested Article 8(1) of the Carbon Growth Act, which stipulates that “the government shall reduce national greenhouse gas emissions by a rate prescribed by Presidential Decree by at least 35 percent of the national greenhouse gas emissions in 2018 by 2030 as the mid- to long-term national greenhouse gas reduction target.” The plaintiffs argued that this goal was arbitrary and irresponsible and that ot ignored climate scientific findings and the standards agreed upon by the international community, and that it is not based on a ‘carbon budget (total greenhouse gas emissions)’ necessary to prevent the climate crisis. Furthermore, they argued that the Carbon Growth Act is based on ‘groundless optimism’ about technology and market-based ‘green growth’ and that it favors corporate interests over constitutional rights protection.

In concreto, the plaintiffs invoked the right to pursue human dignity, value and happiness in Article 10 of the South Korean Constitution, along with the right to live a life worthy of humanity in Article 34, and the right to live in a healthy and pleasant environment in Article 35. They also invoked Article 36 of the Constitution concerning the protection of public health and disaster prevention. Citing scientific evidence concerning increasing natural disasters, food and water shortages, security crises and social disasters, they submitted that “the obligation to protect fundamental rights from climate change has been fulfilled only when measures corresponding to the minimum level agreed upon in the international community are taken.”

The applicants explicitly linked their case to the German Neubauer judgment concerning the impact of unambitious climate policy on the rights of future generations, as well as referencing the Dutch Urgenda judgment.

Relevant interim developments:

On 12 June 2023, it was announced that the National Human Rights Commission of Korea had decided to submit an opinion to South Korea’s Constitutional Court to oppose the country’s Carbon Neutrality Act (2021), which it considered to be unconstitutional and in violation of the fundamental rights of future generations because it sets out a greenhouse gas emissions reductions target that was too low. The Act sets out a 40% emissions reductions target by 2030 as compared to 2018 levels. This, the Commission found, did not respect the constitutional principle of equality, because it passed the burden of greenhouse gas emissions on to future generations.

Consolidation with three other cases:
The South Korean Constitutional Court decided to consolidate its first four climate cases (Do-Hyun Kim et al. v. South Korea, Woodpecker et al. v. South Korea (Baby Climate Litigation), Climate Crisis Emergency Action v. South Korea (a.k.a. Byung-In Kim et al. v. South Korea) (the present case) and Min-A Park v. South Korea). Public hearings in the cases were held on 23 April 2024 and 21 May 2024.

These cases all alleged that the government’s inadequate greenhouse gas reduction targets violated citizens’ fundamental rights, particularly those of future generations. Together, the four cases comprised over 250 plaintiffs, including civil society, youth and children. The Constitutional Court issued a joint ruling in these cases on 29 August 2024.

Judgment of the constitutional court:
On 29 August 2024, the South Korean Constitutional Court found a violation of constitutional rights in this case and three related cases. In an unanimous ruling, hailed as “the first decision of its kind in Asia“, the court found that the government’s response to the climate crisis was inadequate and threatened constitutional rights, noting that the country lacked legally binding long-term emissions reductions targets for the post-2031 period, which violated the constitutional rights of future generations by shifting an excessive reductions burden to the future. The court gave government and legislature 18 months (until 28 February 2026) to introduce the relevant targets.

In particular, the Court ruled that Article 8(1) of the South Korean Carbon Neutrality Basic Act was unconstitutional. Previously, the government had pledged a 40% reduction of its GHG emissions by 2030 compared to 2018 levels, but had failed to set any targets since. The Constitutional Court held that this “does not have the minimum character necessary as a protective measure corresponding to the dangerous situation of the climate crisis”, citing the “principle of non-underprotection”, which means that the State must take appropriate measures to effectively protect the constitutional rights of its citizens.

Simultaneously, the Court held that the government’s target for 2030 did not infringe constitutional rights.

Last updated:
29 August 2024.

Categories
2022 Biodiversity Children and young people Domestic court Emissions reductions/mitigation Fossil fuel extraction Gender / women-led Human dignity Non-discrimination Paris Agreement Right to a healthy environment Right to health Right to life Right to water Sea-level rise South Africa Standing/admissibility

African Climate Alliance et. al. v. Minister of Mineral Resources & Energy et. al. (#CancelCoal case)

Summary:
On 10 November 2021, three South African NGOs (the African Climate Alliance, Vukani Environmental Justice Movement in Action and groundWork) initiated a constitutional challenge against the South African government’s plans to augment its coal-fired electricity capacity. Also known as the #CancelCoal case, this challenge invokes the protection of environmental rights, the rights of children, the right to life and human dignity, the right to water, healthcare and food, and the right to equality and protection from discrimination. Noting that South Africa is one of the top 15 current global greenhouse gas emitters, the plaintiffs argue that the procurement of 1500 MW of new coal-fired power stations threatens the rights of present and future generations in South Africa, who will be “left to deal with the consequences of extreme weather events, heatwaves, droughts, coastal flooding, famine, cyclones and social upheavals”. They submit that the constitutional rights violations caused by the new coal plants “will disproportionately impact the poor and the vulnerable, including women, children and young people”.

More details on the challenge:
In terms of standing, the applicant organizations brought their case in their own direct interest, in the interests of their members, in the public interest, and in the interest of the environment, noting the “far reaching consequences for present and future generations”.

The applicants invoke section 24 of the South African Constitution, which recognizes the right to a healthy environment. They argue that, by ratifying international agreements on climate change, including the Paris Agreement, the State recognizes the threat for this right posed by climate change. They also invoke section 28(2) of the Constitution, which guarantees the protection of the best interests of the child, arguing that “children are most vulnerable to the impacts of climate change and the further health risks caused by coal-fired power stations”. Noting that South Africa’s first NDC, submitted in 2015 and revised in 2021, committed to peaking emissions from 2020-2025, with net zero to be achieved by 2050, they submit scientific evidence from the IPCC to show the level of threat at hand and the different emissions reductions pathways discussed. Coal, they argue, “is the single most significant contributor to climate change”, and South Africa’s plants to procure more coal-fired power plants is “directly at odds” with global calls for action against coal, despite its vulnerability to the impacts of climate change, including from heat, storms, drought, rising sealevels, loss of species and biodiversity, and the psychological harms linked to climate change, as well as economic costs associated with responding to the effects of climate change, which will “divert scarce resources allocated to alleviating powerty and promoting sustainable development”.

The applicants also argue that the government’s references to “clean coal” are scientifically unfounded, and that it is unrealistic to argue that carbon capture technologies will mitigate the impacts of the new coal plants. “Climate change is the ultimate collective action problem”, they submit, and collective efforts are needed. South Africa’s support for coal undermines the global efforts in this regard, is inconsistent with South Africa’s “fair share” obligations, and is detrimental to the environment in a number of ways.

Invoking the constitutional right to equality together with environmental rights, the applicants argue that the action in question produces unfair discrimination “on intersecting grounds of race, gender, and social origin. This is because poor, black South Africans, and particularly women and children, are the primary victims of ecological degradation and air pollution caused by coal-fired power. They will also be the worst affected by the climate crisis”, as recognized in the government’s Environmental Impact Assessment (para. 358 of the application).

In terms of remedies, the applicants seek the review and setting aside of the decisions to procure new coal plants.

Further developments:
On 8 December 2021, the President of South Africa issued notice that he does not intend to oppose the application and shall abide by the decision of the court. On the same date, the Minister of Mineral Resources and Energy issued notice of his intention to oppose the application.

On 12 December 2022, in what was described as an “early victory” in the case, the Pretoria High Court ordered the Minister of Mineral Resources and Energy to release records relating to the decision to seek new coal power, and to pay the costs of the application.

Further reading:

The full application form in this case is available from climatecasechart.com, as are further documents on the case.

Suggested citation:
High Court of South Africa, Gauteng Division (Pretoria), African Climate Alliance and others v. Minister of Mineral Resources and Energy and others, case no. 56907/2021, filed on 10 November 2021.

Last updated:
26 June 2023.

Categories
2023 Canada Children and young people Domestic court Emissions reductions/mitigation Non-discrimination Paris Agreement Public trust doctrine Right to life Standing/admissibility Vulnerability

Mathur et al. v. HM the Queen in Right of Ontario

Summary:
On 25 November 2019, seven Canadian young people and the NGO Ecojustice brought a case against the State of Ontario, arguing that it had failed to take adequate action to mitigate its greenhouse gas emissions and contesting the State’s “dangerously inadequate GHG reduction target” as set out under the Cap and Trade Cancellation Act of 2018. Under this legislation, Ontario aims to reduce GHG emissions to 30% below 2005 levels by 2030. To contest the adequacy of this target, and the previous repeal of the more ambitious Climate Change Act (with its target of 45% reductions by 2030), the applicants invoked sections 7 and 15 of the Canadian Charter of Rights and Freedom (the right to life, liberty and security of the person and the right to equal protection under the law). Arguing that they have a serious and genuine interest in this case, which also impacts all Ontario youth and future generations, they noted that climate change will cause heat-related fatalities, harms to human health, increased fire activity and the spread of disease, increased flooding and other extreme weather events, harmful algal blooms and exposure to contaminants, harms to Indigenous peoples, and psychological harms and mental distress.

Claims made:
Noting the principle of common but differentiated responsibilities and the leading role of developed countries under the Paris Agreement, the applicants argued that Ontario’s current emissions reductions target compromises their right to life, liberty and security of the person “in a serious and pervasive manner that does not accord with the principles of fundamental justice”. They furthermore submitted that the target violated the right to liberty of Ontario’s youth and future generations, because it impacted their ability to make choices about their futures. They invoked the principle of “societal preservation” and human dignity, and argued for the recognition of a right to a stable climate system. Concerning the right to equal protection under the law, they argued that youth and future generations are in a uniquely vulnerable situation given their age and exclusion from political participation and the fact that they will be disproportionately impacted by climate change.

Relief sought:
Among other things, the applicants sought the invalidation of the existing emissions reductions targets and the rules for setting such targets, a declaration that it violates unwritten constitutional principles about avoiding harm, a recognition of the right to a stable climate system, and an order that Ontario must set out a science based GHG reduction target consistent with its share of global emissions.

Decision on admissibility:
On 12 November 2020, the Superior Court of Justice for Ontario rejected a motion from the government to dismiss the case. The government had invoked the absence of a right to a stable climate from the Charter, the plaintiffs’ alleged lack standing to represent future generations, and the absence of sufficient evidence or a reasonable cause of action.

Hearing:
A hearing in this case was heard from 12-14 September 2022.

2023 Judgment:
On 14 April 2023, the Superior Court of Justice of Ontario delivered its judgment in the case. The Court found that, although the policies in question were justiciable given that the applicants had challenged specific state acts and legislation, the applicants had not established a violation of their rights under the Canadian Charter of Rights and Freedoms.

In her judgment, Justice Vermette noted that the issue of establishing Ontario’s “fair share” of the remaining carbon budget was not a justiciable issue, and “should be determined in another forum” (para. 109). Justice Vermette did consider it “indisputable that, as a result of climate change, the Applicants and Ontarians in general are experiencing an increased risk of death and an increased risk to the security of the person” (para. 120). However, she disagreed with the applicants’ characterization of the emissions reductions target as “authorizing, incentivizing, facilitating and creating the very level of dangerous GHG that will lead to the catastrophic consequences of climate change for Ontarians”, finding that “the target does not authorize or incentivize GHG” (para. 122).

While the target was not legally meaningless, and justiciable under the Charter, Justice Vermette found (contrary to the arguments of the applicants) that the question at issue was whether the Charter imposed positive obligations. Leaving this question open, albeit acknowledging that “the Applicants make a compelling case that climate change and the existential threat that it poses to human life and security of the person present special circumstances that could justify the imposition of positive obligations under section 7 of the Charter”, Justice Vermette found that any putative deprivation of Charter rights at stake was not contrary to “the principles of fundamental justice”, i.e. neither arbitrary nor grossly disproportionate. This test applies because the relevant right in the Charter, i.e. its Article 7, stipulates that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Concerning the equality claim under Article 15 of the Charter, Justice Vermette found that Ontario’s climate policy did not distinguish based on age, but made a temporal distinction, and that accordingly there was no violation of that provision either.

Proceedings on Appeal:
An appeal by the applicants was heard by the Ontario Court of Appeal — the highest court in the state of Ontario — in January 2024. On 17 October 2024, this court unanimously ruled that the case should be referred back to the previous instance, the Superior Court of Justice for Ontario, for a new hearing, finding that the case raised important issues and that the lower court judge’s analysis was flawed on key points. The Court of Appeal ordered a new hearing in the case before the Superior Court of Justice.

The Ontario Court of Appeal unanimously found that the previous instance had erred in framing this case as seeking to impose new positive obligations on the State of Ontario (para. 5). Instead, it found that through state law, specifically the Cap and Trade Cancellation Act of 2018, the government of Ontario had “voluntarily assumed a positive statutory obligation to combat climate change”. The ruling also invited the applicants to broaden the scope of their case by incorporating arguments made by amicus curiae and to adduce further evidence.

In doing so, the Court found that:

[6]          The interveners raised relevant, important issues that were not determined by the application judge, either because they were not raised before her or did not affect her analysis, or because she declined to address them since they were not pleaded in the notice of application. They included whether the Target breached the Charter rights of Indigenous peoples in Ontario and their s. 35 rights under the Constitution Act, 1982; the integration of the public trust doctrine; the application of international law, including international environmental law, in the interpretation of Charter rights; the application of the best interests of the child principle; and the recognition and impact of certain unwritten constitutional principles, including societal preservation and ecological sustainability.

Further reading:

  • The original application is available in full from Climate Case Chart, as is the admissibility order.
  • The 2023 judgment in the case is available here.
  • A comment on the judgment in this case, as well as its context, is available from Christie A. MacLeod, Annafaye Dunbar, and Rosemarie Sarrazin (Miller Thomson) here.
  • The 2024 ruling of the Ontario Court of Appeal can be found here.

Suggested citation:
Superior Court of Justice for Ontario, Mathur v. Ontario, 2023 ONSC 2316, 14 April 2023.

Ontario Court of Appeal, Mathur v. Ontario, 2024 ONCA 762, 17 October 2024.

Last updated:
13 November 2024.

Categories
2023 Business responsibility / corporate cases Domestic court Emissions reductions/mitigation Fossil fuel extraction Italy Paris Agreement Private and family life Right to health Right to life Right to property

Greenpeace Italy, ReCommon, et al. v. ENI, Italian Ministry of Economy and Finance, et al.

Summary:
Greenpeace Italy, together with ReCommon (an Italian association involved in questioning corporate and State power) and twelve Italian citizens from different regions of the country manifestly affected by climate change impacts, filed a lawsuit against ENI, a major oil & gas multinational company, and the Italian Ministry of Economy and Finance, which, also through Cassa Depositi e Prestiti S.p.A. (an important public financial institution), has a relevant influence on the corporation.

The applicants asked the Court to ascertain and declare that the defendants share liability for the moral and material damages they suffered to their health, life and properties due to climate change impacts, and for further endangering these same assets.
The claimants allege ENI contributed to climate change as its activities, either industrial, commercial or for transportation of energy products, caused greenhouse gas emissions far beyond the limits suggested by the scientific community, notwithstanding the temperature goals internationally recognized in the Paris Agreement, which implies emissions reductions both in the public and in the private sphere. The claimants argue that the Italian Ministry of Economy and Finance and Cassa Depositi e Prestiti S.p.A. (whose majority shareholder is the same Ministry), as shareholders of the oil&gas corporation, could have influenced its strategy concerning the ecological transition away from fossil fuels, but did not leverage their relevant influence in that direction.

The legal strategy is primarily based on Article 2043 of the Italian Civil Code, dedicated to liability for non-contractual damages and interpreted, according to previous case-law, as a tool for human rights protection. The applicants claimed a violation of their rights to life, health, and respect for private and family life, as enshrined in the Italian Constitution, in the European Convention on Human Rights, in the International Covenant on Civil and Political Rights, and that ENI shall respect according to the Guiding Principles on Business and Human Rights and the OECD Guidelines for multinational enterprises.
The claimants drew on attribution science to argue for the existence of a causal link, and recalled the reasoning of the Dutch courts in the Urgenda case, according to which even a quantitatively relatively low level of greenhouse emissions on the global scale contributes to climate change, meaning that there is a sufficient causal link between those emissions and their present and future adverse effects. In addition, the applicants rely subsidiarily on Article 2050 of the Italian Civil Code, dedicated to liability for dangerous activities, that implies a reversed burden of proof: the defendant shall prove that every measure was taken to prevent the damaging event.

Concerning remedies, the claimants did not ask the Court to quantify the damages. Recalling the case against Royal Dutch Shell (Milieudefensie), they asked the Court to order ENI to reduce its greenhouse emissions by 45% in 2030 compared to 2020 and to align to the 1.5°C temperature goal. They also asked the Court to impose a monetary sanction in case the order is not fulfilled. The applicants also asked the Court to order the Italian Ministry of Economy and Finance and Cassa Depositi e Prestiti S.p.A. to adopt a policy defining climate goals to foster as relevant shareholder of the corporation.

This is not the first instance of rights-based climate litigation in Italy: you can read about the previously filed lawsuit against the Italian State here in the Database (A Sud and Others v. Italy).

Further developments:
At the end of July 2023, ENI filed a parallel lawsuit against Greenpeace Italy and ReCommon for defamation through their press and social media campaign (“La Giusta Causa”, The Just Cause) related to the climate case. Greenpeace Italy and ReCommon declared that they consider this lawsuit to constitute a SLAPP, Strategic Lawsuit Against Public Participation.

In September 2023 the defendants filed their written briefs. All three defendants (ENI S.p.A., the Italian Ministry of Economy and Finance, and Cassa Depositi e Prestiti S.p.A.) requested the Court to dismiss the complaint on several grounds, including: an absolute lack of jurisdiction in application of the principle of the separation of powers; a lack of jurisdiction concerning ENI’s operations in States other than Italy; a lack of standing for environmental associations and individuals when a public interest is concerned; indeterminate and ill-founded claims.

An oral hearing was held on 16 February 2024 and another hearing was planned for 13 September 2024. However, the plaintiffs, after the first instance judgment in the A Sud and Others v. Italy case, filed a request with the Italian Highest Court (Suprema Corte di Cassazione, Sezioni Unite Civili) for a separate and anticipated judgment on the sole jurisdiction issue. They also requested the highest court to file a demand with the Constitutional Court to challenge the Ministry of Economy and Finance’s interpretation of the Italian law ratifying the Paris Agreement. On 17 July 2024 the Civil Court of Rome confirmed the suspension of the first proceeding, pending the decision of the Highest Court, expected early in 2025 (or later, depending on whether the Constitutional Court will also be involved).

Notably, in their request to the Highest Court, the plaintiffs mentioned the judgment in the Verein KlimaSeniorinnen Schweiz et al. v. Switzerland case (pp. 16-18, 27 of the original text of the request), and, in particular, the statements of the ECtHR related to the role of courts in democratic processes and in climate litigation (§412, §413, §639).

Date of filing:
9 May 2023

Jurisdiction:
Civil Court of Rome

Status of the case:
Pending

Suggested case citation:
Complete case citation: Greenpeace Italia, ReCommon, et al. v. Eni S.p.A., Ministero dell’Economia e delle Finanze, et al., Tribunale di Roma, Seconda Sezione Civile, n. 26468/2023 [Greenpeace Italy, ReCommon, et al. v. Eni S.p.A., Italian Ministry of Economy and Finance, et al., Civil Court of Rome, Second Civil Section, n. 26468/2023]

Suggested case citation: Greenpeace Italia, ReCommon, et al. v. Eni S.p.A., Ministero dell’Economia e delle Finanze, et al.

Documents:

More information:
More information can be found on the dedicated web pages of Greenpeace Italy and ReCommon.

Italian language: all the documents of the proceedings and a review of relevant literature can be found on this website hosting the Observatory on Italian climate change litigation, edited by the students in Comparative Climate Change Law at the University of Salento.

Last updated:
1 August 2024

Categories
2022 Brazil Domestic court Emissions reductions/mitigation Paris Agreement Right to a healthy environment

PSB et al. v. Brazil (Climate Fund)

Summary:

On 5 June 2020, four Brazilian political parties (Partido Socialista Brasileiro (PSB), Partido Socialismo e Liberdade, Partido dos Trabalhadores and Rede Sustentabilidade) filed a direct action of unconstitutionality for omission before the Brazilian Federal Supreme Court (“Court”) related to the National Fund on Climate Change (“Climate Fund”) (case ADPF 708).

The Climate Fund was established in 2009 to direct its annually authorized budget to Brazilian projects that address the reduction of greenhouse gas emissions and adaptation to climate change and its effects.

The plaintiffs claimed that the Brazilian Federal Administration kept the Climate Fund inoperative during 2019 and 2020. According to the plaintiffs, the Brazilian government’s inaction regarding the Climate Fund is a violation of its constitutional and international legal environmental obligations.

Based on the constitutional right to a healthy environment, the plaintiffs requested the Court to declare the unconstitutionality of the Brazilian government’s omissions and to issue an injunction compelling the government to actualize the Climate Fund by resuming operations and reactivating its institutional governance of the Fund.

By its decision dated 4 July 2022, the majority of the Court (10 out of 11 judges) granted the plaintiffs’ application. The Court recognized the government’s failure to fully allocate the Climate Fund’s resources for 2019. It ordered the Federal Administration not to neglect the Climate Fund again and determined that the resources from the Climate Fund cannot be withheld.

The Court based its decision on the constitutional duty to protect the environment (Art. 225 of the Federal Constitution), the rights and international obligations assumed by Brazil, and the constitutional principle of separation of powers. Judge Luís Roberto Barroso noted that treaties on environmental law constitute “a species of the genus human rights treaties” and, for this reason, enjoy supranational status.

The Court’s decision attracted attention as it was the first time that the country’s highest court addressed the issue of climate change.

Date of decision:

4 July 2022

Case documents:

More information:

  • For further procedural information, visit Supremo Tribunal Federal.
  • For Prof. Ingo Wolfgang Sarlet’s and Tiago Fensterseifer’s comment on the decision, click here.
  • For Dr. Maria Antonia Tigre’s interpretation of the decision, click here.
  • For more case documents, such as an English translation of the decision, visit Climate Case Chart.

Suggested citation:

Brazilian Federal Supreme Court, PSB et al. v. Brazil, case ADPF 708, decision of 4 July 2022.

Last updated:

17 April 2023.