Category: Right to property

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

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

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

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

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

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

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

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

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

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

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

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

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

For reporting on the case, see the Guardian.

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

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

Declic et al. v. The Romanian Government

Summary:

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

Claim:

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

Links:

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

Status of the case:

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

Suggested citation:

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

Last updated:

03 November 2023.

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

Segovia et al. v. Climate Change Commission

Summary:

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

Claim:

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

Decision:

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

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

Links:

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

Status of the case:

Judgment

Suggested citation:

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

Last updated:

20 October 2023.

Categories
Biodiversity Domestic court Just transition litigation Right to a healthy environment Right to assembly and association Right to freedom of expression Right to health Right to property South Korea

Korean Biomass Plaintiffs v. South Korea

Summary:

On September 28, 2020, a group of solar developers in Seoul, South Korea filed a complaint against the South Korean government, claiming that the government’s subsidies for biomass generation were unconstitutional. The plaintiffs include various stakeholders, such as solar cooperatives, cooperative members, residents near planned biomass facilities, ordinary citizens of South Korea, and even a Canadian citizen.

The central argument in their complaint revolves around the idea that the government’s support for biomass generation, classified as ‘renewable energy’ under South Korean legislation, qualifies for renewable energy certificates (RECs) and associated subsidies, which they argue infringes upon the environmental rights of the citizens. They assert that these subsidies lead to increased air pollution and climate-related damage.

The plaintiffs also argue that these policies negatively affect the property rights of renewable project owners. The subsidies allocated to biomass generation reduce the available support for solar and wind energy, which, in turn, impacts the expected profits for those involved in renewable energy projects.

The key issue at the heart of this case is whether South Korea’s subsidies for biomass generation violate the constitutional environmental rights of solar owners and residents living near these facilities.

Claim:

The claim made by the solar developers and other stakeholders in Seoul, South Korea, is that the government’s subsidies for biomass generation are unconstitutional and that these subsidies infringe upon the environmental rights of citizens. They argue that these subsidies contribute to increased air pollution and climate-related harm, affecting the well-being of the populace. Furthermore, they claim that these policies encroach upon the property rights of renewable project owners by reducing support for solar and wind energy, impacting the expected profits of those engaged in renewable energy projects. The core contention is that these subsidies for biomass generation violate the constitutional environmental rights of solar owners and nearby residents.

Decision:

The case is currently pending before the Constitutional Court of the Republic of Korea.

Links:

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

Suggested citation:

Korean Biomass Plaintiffs v. South Korea (28 September 2020, Constitutional Court).

Last updated:

20 October 2023.

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

Anton Foley and others v. Sweden (Aurora Case)

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

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

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

Date filed:
25 November 2022

Status of case:
Pending

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

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

Last updated:
16 August 2023

Categories
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
Adaptation Domestic court Imminent risk Loss & damage Right to a healthy environment Right to health Right to life Right to property Uganda

Tsama William & 47 Ors v. Uganda

Summary:

The case was initiated following multiple landslides that occurred in December 2019 in the Bududa district in Eastern Uganda, in an area that is prone to landslides, which the applicants allege were exacerbated by climate change. The applicants claim that the landslides resulted in their displacement from their homes, killed their relatives and destroyed their property and the environment.

The applicants brought the case against the Ugandan government, the environmental authority and the local government of Bududa before the High Court of Uganda seeking orders for protective measures and compensation.  

Claims:

The applicants claim that the respondents have violated their positive obligations under statutory law to protect the applicants from recurrent landslides. They argue that the respondents’ failures to put in place an effective machinery for dealing with landslides and promptly warn the applicants about known risks, violated their fundamental rights to life, a clean and healthy environment, property, and physical and mental health. Aside from declaratory relief, the applicants claim a sum of 6.8 billion Ugandan Shillings as compensation for loss of life, destruction of property, physical and mental harm, as well as the cost of resettlement to safer areas.  The applicants further allege that the risk of future landslides owing to extreme weather events caused by climate change requires the respondents to take measures to relocate and resettle the applicants.  

This case is about adaptation to environmental risks (i.e. it is broader than climate adaptation), since the applicants principally rely on evidence that the problem of recurring landslides in the Bududa district has been going on since the beginning of the 20th century. However, the applicants rely on climate change as one among the factors contributing to the landslide risks they had previously faced and are likely to face in the future, as well as their vulnerability.  

Links:

The case documents are accessible via Climate Case Chart. For petition submitted by the applicants to the High Court of Uganda see here.

For replies by the respondents, see here and here.

Status of the case: The case is pending before the High Court of Uganda.

Last updated: 03 August 2023.

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

Waratah Coal Pty Ltd v. Youth Verdict Ltd & Ors

Summary:

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

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

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

Claims:

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

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

Decision:

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

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

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

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

Links:

For full judgment of 25 November 2022, see here.

Suggested case citation:

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

Last updated:

03 August 2023.

Categories
2023 Business responsibility 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.

Date of filing:
9 May 2023

Jurisdiction:
Civil Court of Rome

Documents:

More information:
More information on Greenpeace Italy and ReCommon dedicated web pages.

Last updated:
15 May 2023