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2026 Belgium Business responsibility / corporate cases Emissions reductions/mitigation Farming Loss & damage

Falys et al. v. TotalEnergies (‘The Farmer Case’)

Summary:

In March 2024, Hugues Falys, a farmer located in Belgium, filed a legal action at the Commercial Court of Tournai (Belgium) against TotalEnergies. He was joined by Ligue des Droits Humains, Greenpeace Belgium and FIAN Belgium.

The objective of the legal action is to claim compensation for damages suffered by Falys as a result of climate breakdown, and to force TotalEnergies to move away from fossil fuels. The civil liability action is based on articles 1382 and 1383 of the former Belgian Civil Code. In their submissions to the court, the plaintiffs have put forward human rights arguments as one line of interpretation of the relevant provisions, inter alia referring the ECtHR’s judgment in Klimaseniorinnen multiple times.

Relevant developments:

On March 18, the Commercial Court of Tournai found the action to be admissible, thereby recognising that carbon majors can be held accountable in Belgium for causing climate change even if their headquarters is in another state. With regards to the merits of the case, the Court postponed its judgment to 9 September 2026 to await the decision in a similar case against TotalEnergies in France.

See also:

Notre Affaire à Tous and Others v. Total.

Verein KlimaSeniorinnen et al. v. Switzerland.

Links:

For the main conclusions of the plaintiffs (in French), see here.

For an unofficial translation of the main conclusions of the plaintiffs (in English), see here.

For the Court’s admissibility judgment of 18 March 2026 (in French), see here.

Last updated:

20 March 2026.

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2025 Deciding Body Emissions reductions/mitigation Hungary Right to a healthy environment

Constitutionality of Article 3(1) of the Climate Protection Act (Hungary), Decision No. II/3536/2021

Summary:

50 members of the parliament petitioned the Hungarian Constitutional Court to declare several provisions of the Climate Protection Act XLIV of 2020 as unconstitutional. They argued that the Act was not in conformity with the following provisions of the Fundamental Law of Hungary: Article P(1) containing the obligation of the state and everyone to protect, maintain land, and preserve for future generations, Hungary’s forests and the reserves of water; biodiversity; and cultural artefacts; Article Q(2) containing the obligation to ensure that Hungarian law is in conformity with international law; Article B(1) the obligation to conform to the requirements of rule of law, and the fundamental rights to life, physical health and well-being, legal protection for homes under Articles II, XX and XXI(1) respectively.  

In its plenary session on 13 May 2025, the Constitutional Court announced its decision on the case. It held that Section 3(1) of the Climate Protection Act, establishing a 40% emission reduction target to be achieved by 2030 (compared to 1990 levels), was unconstitutional and repealed with effect from 30 June 2026. In its reasoning, the Court invoked the principles of non-regression, precaution and prevention as bases for interpreting obligations under Articles P(1), XX(1) and XXI(1) of the Fundamental Law which required the state to continuously improve the level of protection in light of the latest developments in climate science and technology. It characterized the maintenance of the 40% target as a failure to update the state’s mitigation commitments in light of ‘events’ which had rendered it outdated. Further, it found that the Climate Protection Act only contained emissions reduction obligations, and did not address the creation of emissions sinks and adoption of adaptation measures, which are of equal importance in ensuring the effectiveness of the legal framework for protection against climate-related risks.

The Constitutional Court also found that the lack of mechanisms for ensuring accountability for the achievement of the target prescribed in Article 3(1) of the Climate Protection Act, to be a reason as to why the provision formally ran afoul of Article B(1) (rule of law) and in terms of content, led to a violation of Articles P(1), XX(1) and XXI(1) of the Fundamental Law.

The Court thus ordered the National Assembly to adopt a comprehensive regulation on Hungary’s climate mitigation commitment as well as adaptation measures tailored to Hungary’s circumstances by 30 June 2026.

Status:

The decision is final

Suggested Citation,

Constitutional Court of Hungary, Constitutionality of Article 3(1) of the Climate Protection Act (Hungary), Decision No. II/3536/2021, 13 May 2025.

Links:

Unofficial version of the decision of the Hungarian Constitutional Court (in Hungarian) can be found here.

Last updated: 12 March 2026

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2026 Children and young people Emissions reductions/mitigation European Convention on Human Rights Non-discrimination Right to health Standing/admissibility Sweden Uncategorized

Aurora v. Sweden (Aurora Case II)

Summary

On 06 February 2026, the youth-led association Aurora launched a climate lawsuit before the Nacka District Court against the government of Sweden alleging a violation of their rights to life, health and well-being as well as the prohibition of discrimination (based on age). The case is a follow-up to Anton Folley and Others v. Sweden (Aurora Case). That case was a class action suit brought by over 600 young individuals (supported by Aurora), which the Supreme Court of Sweden dismissed as inadmissible on the ground that the plaintiffs did not meet the high threshold for individual victim status articulated by the European Court of Human Rights in the Verein KlimaSeniorinnen et al. v. Switzerland judgment.

Relying upon the criteria for ‘victim status’ and the standing of associations to litigate climate cases laid down in Verein KlimaSeniorinnen, Aurora argues that this fresh case is admissible and that the district court may proceed to examining the substantive claims.

Claims:

The substantive claims in Aurora II are largely the same as the claims which were made in the Aurora case, with the new petition drawing upon more recent climate jurisprudence, including the ICJ’s Advisory Opinion on the Obligations of States in respect of Climate Change to support its case. In the petition, Aurora identifies a lack of measures or intermediate emission reduction targets envisaged for the period after 2030, and problematizes Sweden’s emissions debt (i.e. the exceedance of its national fair share of the global carbon budget) as failures to exercise due diligence in the discharge of positive obligation to protect individuals who Aurora represents from serious threats to the enjoyment of their rights. The petition also invokes the findings of the IPCC to argue that children and youth, who Aurora represents (majority born between 1998 and 2026), are at a particular risk from climate change, in order to demonstrate the disparate impact of Sweden’s failure to effectively contribute towards climate mitigation. The petition requests the court to handle the case with urgency, to declare violations of Articles 2, 8 and 14 and an order the government to pay legal costs incurred by the plaintiffs.

Links

  • For the petition (in Swedish) filed by Aurora, see here.
  • For the press release by Aurora announcing the case, see here.

Status

Pending

Suggested citation:

Nacka District Court, Aurora v. Sweden, filed on 6 February 2026 (pending).

Last updated:

11 February 2026

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2026 Blog Class action Emissions reductions/mitigation European Convention on Human Rights Private and family life The Netherlands

Bonaire Climate Case: Creative or Questionable Interpretation of International Climate Law?

Pranav Ganesan, PhD Candidate at the University of Zurich

The Greenpeace Netherlands v. State of the Netherlands(Bonaire) judgment of the Hague District Court has stolen the limelight as the new posterchild for strategic climate litigation. The plaintiff in this case, Greenpeace Netherlands, argued that the Dutch government failed in its duty to protect the residents of Bonaire, an island in the Caribbean which formally attained the status of a special municipality of the Netherlands in 2010. Although it is a special municipality (bijzondere gemeente), it is just as much a part of the Netherlands as any other province in the European Netherlands. The Dutch government owes obligations under international human rights law, including those arising from the European Convention on Human Rights (ECHR), towards residents of the municipality. That international human rights law requires states to undertake climate mitigation measures and adaptation measures, as informed by international climate change law where relevant, has been affirmatively held in two advisory opinions from international courts and the European Court of Human Rights. And the proposition that the Dutch government’s duty of care towards its population essentially includes obligations under the ECHR was confirmed by the Supreme Court of the Netherlands in Urgenda. Thus, it comes as no surprise that in material respects, the Hague District Court’s reasoning was so heavily based on international law.[1] In terms of the scope of state conduct implicated in this case, it outdoes the Urgenda case,which only concerned contributions to the mitigation of climate change. The Hague District Court agreed with the plaintiff that the Dutch government had violated Article 8 ECHR as well as the prohibition of discrimination (Art. 14 ECHR and Art. 1 of Protocol No. 12 to the ECHR), the former due to inadequate mitigation measures, inadequate implementation of those measures, delays in adopting an adaptation plan for Bonaire and late provision of procedural safeguards to the residents of Bonaire. In this blog, I provide a quick analysis of the District Court’s engagement with the UN Framework Convention on Climate Change and Paris Agreement in the section on mitigation measures. Readers interested in learning about the adaptation component and how the court addressed discrimination claim are welcome to read this blogpost by Wewerinke-Singh.

There are areas in the judgment where the District Court’s assessment of the compatibility of the Dutch Climate law framework with international climate law is questionable. The first glaring issue is that the court made a finding of non-compliance with Article 4(4) of the Paris Agreement based on the absence of ‘absolute emissions reduction targets’ in the Dutch Climate Act of 2019 (para 11.13.1). The problem identified by the court was that the targets were expressed as goals that the government would ‘strive to achieve.’ However, this does not mean that the targets are not absolute. The difference between absolute and relative emissions reductions targets being whether they are expressed as percentage reductions in comparison to the emissions during a fixed baseline year, as opposed to reductions from a business as usual scenario in case of relative targets (Winkler et al 2014, 636). The use of the expression ‘strive to achieve’ means that the nature of the obligation to achieve the target is one of conduct rather than result, reflecting the nature of the obligation to pursue domestic mitigation measures in pursuance of NDCs communicated under Article 4(2) of the Paris Agreement (ICJ Advisory Opinion, paras 251-253). Another connected example is the court’s declaration that ‘UN standards’ require emission reduction targets to be expressed as percentage reductions to be achieved by the target date, in comparison to 2019 levels as opposed to the 1990 baseline (para 11.13.2). Moreover, strictly speaking, Article 12(8) of the UNFCCC does not require the EU to provide information about each member state’s national carbon budget like the court suggests (para 11.15.3). The court’s interpretation of these treaty provisions might be technically imprecise, but it is undoubtedly bold, being based on the need for exemplary efforts from a developed country like the Netherlands, and reflecting the appropriate sense of urgency in light of the results of the First Global Stocktake (para 11.9.4). Through its interpretive moves, the court effectively hardened ‘soft’ obligations (i.e. normative expectations) sourced from the Paris Agreement and COP decisions (on hard and soft obligations in the Paris Agreement, see Rajamani, 2016).

A final noteworthy aspect of the judgment is the rather detailed response to how the notion of ‘equity’ in Article 3(1) of the UNFCCC and Articles 2(1) and 4(1) of the Paris Agreement is to be applied in reviewing states’ mitigation commitments. Equity is an elusive concept, with debates on what an equitable distribution of the global emissions reduction burden entails having remained unsettled since the inception of international negotiations on the topic of climate mitigation (Oliver Herrera et al, 2025). The court provided the (un)acceptability of a ‘grandfathering approach’ as an example of one such debate (para 11.13.5). But it did not go so far as to hold that the grandfathering approach is legally impermissible because it is inequitable per se, or that an equal per capita emissions approach is the minimum standard under international law. Rather, it assessed the Netherlands’ policy negatively on account of its failure to justify why its current policy, which is based on the controversial grandfathering principle and falls short of the ambition required by the equal per capita emissions approach, is equitable in accordance with Article 3(1) of the UNFCCC and Article 4(1). It thus did not use equity to dictate the outcome of what exactly the Dutch government’s fair share of the global carbon emissions ought to be. At same time, it did not use the underlying controversy as a reason to entirely avoid reviewing the substance of the Dutch climate mitigation policy. This is underscored by its remedial findings, wherein the court declared that the Netherlands’ current mitigation commitments were inequitable, thereby leading to a breach of Article 8 (para 12.1), but dismissed Greenpeace’s request ordering the adoption of specific emissions reduction targets by the government, or at least a carbon budget reflecting the ‘equal per capita emissions approach’ (paras 8.1 (IV)-(VI), 11.55 and 11.58).

Overall, the Bonaire judgment shows how climate litigation can lead to precarious precedents. On the one hand, the way the Court engaged with the concept of equity provided an assessment of Dutch mitigation ambition which was notably pragmatic and might serve as inspiration for other courts when asked to answer the fair share question. On the other hand, the judgment risks signaling to states that legal texts—which negotiators toiled to craft in ‘constructively ambiguous’ terms—may be stretched by domestic courts to uncomfortable extents. Ultimately, the appellate court’s scrutiny of this case (should the Dutch government file an appeal) will reveal how this judgment will be remembered: whether it will be hailed for its boldness or criticized for its questionable interpretation of international treaties.

[1] André Nollkaemper commented: ‘Today’s judgment of the District Court of The Hague fully lives up to the reputation of Dutch courts as strongly international law-minded. […] The conclusion is firmly anchored in international law. With 29 references to the ICJ Advisory Opinion on Climate Change, 64 references to the European Court’s KlimaSeniorinnen judgment, 64 to the UNFCCC, 62 to the Paris Agreement, and 12 to COP decisions, this surely ranks high on the list of climate change cases that are most shaped by international law.’

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2019 Indigenous peoples rights Indigenous peoples' rights Kenya Participation rights

Amu Power Company Ltd v Save Lamu & Others

Summary:
This case concerns a coal-fired power plant project conceived as part of the Kenyan development blueprint: Kenya Vision 2030. The Kenyan government determined that the 1050 MW power plant would be set up in Kwasasi (near Lamu Port). Amu Power Company Ltd. (Amu Power) won the bid for the project. Subsequently on 7 September 2016, the National Environment Management Authority (NEMA) granted Amu Power the requisite license based on the Environmental & Social Impact Assessment study (ESIA) commissioned by the latter. Immediately thereafter, environmental groups and local community representatives challenged the license before the National Environment Tribunal (NET), naming both NEMA and Amu Power as the respondent parties.

On 26 June 2019, the NET delivered a decision wherein found fundamental deficiencies in public participation and noted the witness for Amu Power’s admission of the failure to consider climate impacts of the project in the ESIA study. It thus found the NEMA to have violated its statutory duty to ensure project’s compliance with the Environmental Management and Coordination Act 2009 read together with the Environmental Impact Assessment & Audit Regulations (EIA Regulations) and therefore cancelled the license.

Further, it recommended that Amu Power conduct a fresh ESIA study, including consideration of the Climate Change Act 2016 and compliance with all statutory requirements, should it wish to pursue the construction and operation of the project.

Amu Power challenged this decision by way of an appeal before the High Court of Malindi. On 25 October 2025, the High Court dismissed the appeal and upheld the NET’s 2019 decision ordering a cancellation of the license.

Claims:
The objectors contended that the operation of the plant would negatively impact the area’s air quality, contribute to climate change to such an extent that its operation would be contrary to Kenya’s National Climate Change Action Plan and Climate Change Act No. 11 of 2016, as well as Nationally Determined Contribution submitted to the UNFCCC which focuses on renewable energy rather than fossil fuels. Further, they argued the effluent discharge from the plant would impact marine biodiversity, potentially increasing seawater temperature by 9°C, which could infringe upon the rights of Lamu residents dependent on fishing, thus interfering with their their cultural rights and traditional way of life a set out in Article 44 and 43 of the Constitution. These contentions were meant to contextualize the crux of the case brought by the objectors, which concerned administrative failure. The objectors invoked the lack of effective public participation, inadequacies in the ESIA study, especially as it related to the plant’s impacts on human health, mitigation of environmental impacts and the failure to consider impacts on climate change, as grounds for cancellation of the license. 

Amu Power argued that the project would displace a much higher amount of carbon dioxide than what could be generated by it, as electricity would be available to users at the lowest rates, also alluded to the added benefits revolving around climate change adaptation measures. It noted that the ESIA study sufficiently addresses the impacts of thermal effluents on the marine environment and local air pollution by also considering the appropriate the mitigation measures. Regarding climate change, Amu Power submitted that the Paris Agreement came into force on 4th November 2016 after the ESIA study had been concluded and the licence was issued. Lastly, Amu Power argued that the NET placed undue emphasis on procedural rather than the substance, i.e. the spirit behind public participation; and that in any case the flaws in the process were not significant enough to deprive the public participation process of its efficacy.

Judgment of the High Court of Malindi:
In its 2019 judgment, the High Court of Malindi re-affirmed the NET’s findings that the license was issued based on a fundamentally flawed public participation process. The Court emphasized the significance of these findings on the basis of the constitutional significance accorded to public participation. Article 10(1) of the Constitution provides those national values and principles of governance, which includes ‘participation of the people’ bind all State organs, State officers, public officers and all persons when applying or interpreting the Constitution, enacting or interpreting any law, or making or implementing public policy decisions. Article 69(1)(d) requires the State to encourage public participation in the management, protection and conservation of the environment.

It further added that the findings regarding inadequate public participation are of over-arching significance, in that even if the NET had erred in assessing the ESIA’s consideration of mitigation measures concerning the treatment of effluents and climate change, as unsatisfactory, “the project and the study remain condemned due to insufficient public participation” (para. 179).

Links:

  • For the full judgment National Environmental Tribunal, see here.
  • For full judgment of the High Court of Malindi on the appeal by Amu Power against the judgment of the National Environmental Tribunal, see here.

Suggested case citation:
Environment and Land Court at Malindi, Amu Power Company Ltd v Save Lamu & Others, ELCA No. 6 of 2019, 16 October 2019, Hon. Justice Mwangi Njoroge.

Last updated:
30 October 2025.

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2025 Blog

The ICJ’s Interpretation of the Paris Agreement

Pranav Ganesan, PhD candidate at the University of Zurich

Introduction

The ICJ, in its advisory opinion on the Obligations of States in respect of Climate Change (AO), makes several notable findings which are worth unpacking and assessing. In this blogpost, I will comment upon some of the Court’s findings related to the interpretation of states’ obligations arising from the 2015 Paris Agreement (Part IV.B of the AO).

Much of the Court’s engagement with the provisions of the climate treaties, in the part of the judgment answering the first question concerning the international obligations of States to protect the climate system and other parts of the environment, was limited to identifying whether they contained procedural or substantive obligations, and obligations of conduct or obligations of result. The most interesting findings of the Court were:

  • That between the two temperature limits specified in the Paris Agreement (PA), viz. 2°C and 1.5°C (art. 2.1(a)), keeping the global average temperature increase below 1.5°C is the ‘primary temperature goal’ (para. 224); and
  • That Paris Agreement Parties’ discretion to determine the substantive content of their nationally determined contributions (NDCs) is limited (para. 245).

In order to arrive at these conclusions, the Court resorted to the rules of interpretation as under the 1969 Vienna Convention on the Law of Treaties (VCLT).

1.5°C as the Primary Goal

Regarding the 1.5°C temperature limit, the Court considered the Glasgow Pact, as a ‘subsequent agreement’ between the parties to the Paris Agreement regarding its interpretation. Subsequent agreements between all parties to a treaty regarding its interpretation or application must be ‘taken into account’ together with the treaty’s context for the purposes of interpretation (VCLT, Art. 31(3)(a)). In other words, they must be thrown into the ‘crucible’ of all things that inform a treaty provision’s interpretation (see Declaration of Judge Tladi, para. 13). Readers may recall that the Conference of Parties (COP) held at Glasgow in the year 2021 aimed to keep the 1.5°C goal alive. The Glasgow Pact reaffirms Article 2.1(a) of the Paris Agreement, and then:

‘Recognizes that the impacts of climate change will be much lower at the temperature increase of 1.5 °C compared with 2 °C and resolves to pursue efforts to limit the temperature increase to 1.5 °C’ (para. 21, emphasis in the original).

The ICJ also relied on the 2023 UAE Consensus which ‘encourages Parties to come forward in their next nationally determined contributions with ambitious, economy-wide emission reduction targets, covering all greenhouse gases, sectors and categories and aligned with limiting global warming to 1.5 °C, as informed by the latest science, in the light of different national circumstances’ (Decision 1/CMA.5, para. 39).

Why is specifying the primacy of 1.5°C important? The mention of two different temperature limits in the Paris Agreement (a comprise formulation considering intractable disagreements between negotiating states) has been a source of some confusion. Mayer has argued that Article 2.1(a) can be explained as prescribing 2°C as the ‘real’ objective, with the States realizing that ‘achieving it is only possible if each of them implements the level of mitigation action that it sees as consistent with a 1.5°C target.’ Rajamani and Werksman have noted that: ‘[a]lthough there are differences in impacts between a 1.5°C temperature rise and a 2°C temperature rise, because the [PA’s] temperature goal is a single goal with two textually inseparable elements—the 1.5° C aspirational goal and the ‘well below 2°C’ goal—the implications of missing the goal are the same in relation to the implementation of the Agreement.’ The implications of missing the goal, according to the above authors, do not include state responsibility for individual Parties as Article 2.1 does not create legally binding obligations. However, there is no confusion as to the provision’s relevance for interpretation (which I shall get to in the next section).

Other international courts which have engaged with this provision have not been as clear about the primacy of the 1.5°C goal under the PA. In its KlimaSeniorinnen judgment, although the European Court of Human Rights noted as a general consideration that ‘the relevant risks are projected to be lower if the rise in temperature is limited to 1.5°C above pre-industrial levels’ (para. 436), it did not make normative statements suggesting 1.5°C as a quantitative temperature goal. In its findings as to the content of positive obligations under Article 8 of the European Convention on Human Rights (ECHR), it held that mitigation measures to be undertaken by ECHR parties must be aimed at preventing ‘a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights’ (para. 546). Admittedly, the Court’s factual finding regarding a +1.5°C warmer world could be taken together with this latter finding to imply that if the 1.5°C is crossed, the conclusion that human rights are seriously and irreversibly affected becomes obvious. Alternatively, the conspicuous absence of any mention of the 1.5°C threshold in the court’s conclusions as to ECHR parties’ positive obligations could be taken to imply that determination of what constitutes an unsafe level falls within each state party’s margin of appreciation as reduced by the consensus reflected in the PA and subsequent COP decisions (on the reduced margin of appreciation, see para 543). Under this line of reasoning, the Court could be seen as having shied away from putting forward its position on the issue of whether a consensus had arisen as to whether the lower of the two temperature goals is primary.

The International Tribunal on the Law of the Sea took a different route its advisory opinion where it was tasked with interpreting obligations under the 1982 UN Convention on the Law of the Sea related to addressing the deleterious effects of climate change on the marine environment. Regarding Article 194(1), the Tribunal interpreted the content of the duty to prevent, reduce and control marine environmental pollution via greenhouse gas emissions as requiring parties to undertake the necessary emission reduction measures while taking into account the 1.5°C goal in the PA (para. 243). It did so based on the ‘broad agreement within the scientific community that if global temperature increases exceed 1.5°C, severe consequences for the marine environment would ensue’ (para. 241). In other words, the ITLOS did not explicate that it regarded 1.5°C as the ‘primary goal’ under Article 2.1 of the Paris Agreement, although the advisory opinion could be understood as implying so. With the ICJ’s AO, this has now been made clear.

Just a few days before the ICJ gave its AO, the Inter-American Court on Human Rights (IACtHR) gave its advisory opinion on the ‘obligations of States in responding to the climate emergency.’ The IACtHR not only identified an obligation to regulate climate mitigation under the 1969 American Convention on Human Rights and 1988 San Salvador Protocol, but also went into detail as to what action states must take to comply with the same (para. 322 et seq). In this regard, it found there to be a ‘significant international consensus’ on keeping the global average temperature increase from exceeding beyond 1.5°C above pre-industrial levels. However, it added that even achieving this goal ‘does not eliminate the risk hovering over millions of people in the region’ (para. 326). As I had argued in a previous blogpost, there is nothing special about 1.5°C and 2°C, since they were merely a product of political compromise. Thus, the fact that the PA mentions these numbers does not necessarily lead to the conclusion that human rights law should be apathetic to the devastating impacts suffered by individuals and groups in a +1.4°C or +1.3°C warmer world. The threshold of warming that puts populations and ecosystems at ‘serious’ risk may vary from region to region. And the Inter-American Court affirmed this view. Still, since it had to specify a standard or otherwise risk leaving scope for ambiguity, the Court held that states must determine a mitigation target, based inter alia, ‘on a temperature increase of no more than 1.5ºC’ (para. 326). Again, the Court did not interpret Article 2.1(a) of the PA itself but rather used the provision, the international consensus and specific findings of the IPCC as to the risks of global warming exceeding the 1.5°C mark to help arrive at ‘a minimum starting point’ for what should inform national mitigation targets (para. 326). What is more, the language used by the Inter-American Court suggests no tolerance even for a limited overshoot above 1.5°C, in contrast to what seems to be suggested by the text of the UAE Consensus (see Decision 1/CMA.5, para 27).

Ultimately, the ECtHR, ITLOS and IACtHR avoided wading into the thicket of constructive ambiguity created by the mention of two temperature goals in Article 2.1(a) of the PA. Of course, they were only tasked with interpreting the ECHR, UNCLOS and ACHR respectively, and referring to the PA as a relevant instrument for interpretive purposes (VCLT, art. 31(3)(c)). Answering an interpretive question pertaining to an external treaty provision could have invited criticisms about the courts overstepping their jurisdiction. Moreover, the three courts in question may have chosen the ‘better safe than sorry’ approach, avoiding getting the interpretation of the PA wrong (before the ICJ could give its AO). Going forward, other courts may rely upon the findings in the AO about Article 2.1(a) PA, as well as its approach of using COP decisions as interpretive tools.

The Content of NDCs

The primacy of ‘national determination’ of mitigation contributions under the Paris Agreement (also called the ‘bottom-up approach’) has led to concerns about the toothlessness of the treaty. Indeed, while Article 4.2 creates a binding obligation on Parties to prepare and communicate NDCs, the committee tasked with reviewing compliance with this obligation cannot comment on their substantive (in)adequacy (Decision 20/CMA.1, Annex, para. 23). Moreover, the wording of Article 4.2 does not directly suggest that these NDCs must be highly ambitious or determined with concern for those most vulnerable to the effects of global warming. However, the ICJ held that ‘[t]he content of the NDCs is equally relevant’ to the formal preparation, communication and maintenance of successive NDCs ‘to determine compliance’ (para. 236).

The Court’s interpretation of Article 4.2 PA was based on other provisions of the Paris Agreement as well as COP Decisions. The following provisions were cited as providing support to the Court’s interpretation: Article 2 (setting out the Parties’ collective goals and manner of implementation of the PA), Article 3 (defining NDCs); Article 4.3 (setting out the normative expectation of progression and highest possible ambition); Article 14.3 (linking the outcomes of the global stocktake with NDCs) and Article 4.8 (linking information to be communicated through NDCs with COP decisions). Additionally, the Court relied on a requirement under the Paris Rulebook (adopted during the 2018 Katowice COP) that Parties must explain how they consider their contribution to be fair and ambitious, and how it contributes to the objectives of the 1992 UN Framework Convention on Climate Change and Paris Agreement as set out in Article 2 of both treaties (Decision 4/CMA.1, Annex I, paras. 6-7). The Court’s reasoning on limited state discretion in determining the content of their NDCs is reminiscent of its reasoning in the Whaling judgment, relating to the question of whether the International Whaling Convention gives parties absolute discretion to determine whether their conduct falls within the ‘purposes of scientific research’ exception (see paras. 56-61). In both instances, the Court balanced the discretion-preserving intent suggested by the wording of the provisions against the treaties’ other-regarding object and purpose. And why is the ICJ’s finding that Parties’ discretion to self-regulate climate mitigation is not absolute important? As Judge Tladi noted in his declaration, this means that the ambitiousness (or sufficiency) of NDCs is ‘open to scrutiny, including judicial scrutiny’ (para. 17, emphasis added).

Concluding Remarks

This blogpost has highlighted two key findings of the ICJ regarding provisions of the PA. Parties must align the mitigation contributions they communicate with the 1.5°C goal as well as other standards under the PA such as progression, highest possible ambition, and the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC). Given that objectives specified in NDCs need to be implemented with due diligence through domestic measures (PA, art. 4.2 second sentence), these findings will embolden domestic courts in reviewing such measures.

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2024 European Convention on Human Rights Norway Private and family life Right to life

Norwegian Air Shuttle ASA v. Norway

Summary:
In a case before the EFTA Court concerning the EU’s emissions trading scheme, referred by the Oslo District Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, the EFTA Court acknowledged the link between human rights and climate change. The case concerned the obligation to surrender greenhouse gas emissions allowances granted under the scheme in the context of a corporate restructuring, with the EFTA Court finding that EU law precludes national legislation from providing that the obligation to surrender emissions allowances may be settled by dividend in a compulsory debt settlement in connection with the restructuring of an insolvent company.

In doing so, the Court held in para. 35 of its ruling (issued in 9 August 2024) that:

[I]t must be recalled that combating climate change is an objective of fundamental importance given its adverse effects and the severity of its consequences, including the grave risk of their irreversibility and its impact on fundamental rights (compare the judgment of the European Court of Human Rights of 9 April 2024, Verein Klimaseniorinnen Schweiz and Others v Switzerland, CE:ECHR:2024:0409JUD005360020).

Suggested citation:
EFTA Court, Norwegian Air Shuttle ASA v. Norway, Case E-12/23, Judgment of 9 August 2024.

Last updated:
2 June 2025

Categories
2025 Children and young people Children's rights/best interests Domestic court Right to a healthy environment Right to health South Africa

African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others

Summary:

In African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others, the High Court of South Africa considered a landmark challenge to the government’s continued reliance on coal energy in its national electricity plan. The applicants (a coalition of youth-led and community-based environmental justice organisations) opposed the inclusion of 1,500 megawatts (MW) of new coal-fired power in the 2019 Integrated Resource Plan (IRP 2019). They argued that this decision was unconstitutional, irrational, and disregarded both the worsening climate crisis and the rights of the most vulnerable – especially children and future generations.

The applicants challenged three specific decisions:

  1. The adoption of IRP 2019, which made provision for new coal power.
  2. A subsequent ministerial determination under the Electricity Regulation Act to implement this plan.
  3. The concurrence or approval by the National Energy Regulator of South Africa, which is legally required to agree to such decisions before they can proceed.

The applicants argued that these decisions were unconstitutional, primarily infringing upon the rights to a healthy environment and the well-being of children.

Claim:

The applicants claimed that the government’s decisions to procure 1,500 MW of new coal power violated multiple constitutional rights—primarily Section 24, which guarantees the right to an environment that is not harmful to health or well-being, Section 28(2), which protects the best interests of the child, and the rights to life, dignity, and equality.

They emphasised that coal-based energy generation not only accelerates climate change but also exposes communities—especially poor and historically marginalized ones—to high levels of toxic air pollution. Children, due to their physiological vulnerability, are at greater risk of suffering long-term health consequences. The state, they argued, had a positive duty to consider these human impacts, especially where irreversible environmental harm and intergenerational injustice were at stake.

The applicants further claimed that the process leading to these decisions was procedurally flawed, lacking meaningful public participation, transparency, and adequate consultation with those most affected. They framed their challenge as a matter of environmental justice, climate accountability, and the protection of constitutional rights, particularly for those who bear the brunt of environmental degradation without benefiting from its economic returns.

Judgment:

On 4 December 2024, Judge Cornelius van der Westhuizen ruled in favor of the applicants, declaring the government’s plan to procure 1,500 MW of new coal-fired power unconstitutional, unlawful, and invalid. In a significant affirmation of rights-based climate justice, the court found that the government had failed to consider the harmful impacts of coal on health, the environment, and children’s rights. It highlighted that the best interests of children were not given paramount importance, in breach of Section 28(2). It also criticized the lack of adequate public participation and failure to assess cleaner and less harmful energy alternatives.

The court emphasized that the Constitution demands not only the avoidance of environmental harm, but also active promotion of sustainable development and intergenerational equity. It ordered that the coal provisions in the IRP and associated implementation decisions be set aside, and directed the government to pay the applicants’ legal costs.

This ruling sends a powerful message: government policy cannot be separated from its human rights consequences. It reinforces that climate change is not only an environmental issue, but a profound justice issue, affecting the lives, health, and futures of millions—especially the youngest and most vulnerable South Africans.

Document:

The case documents are available here and here.

Suggested citation:

African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others (56907/2021) [2024] ZAGPPHC 1271 (4 December 2024).

Status of the case:

Decided.

Last updated:

20 March 2025.

Categories
2025 Domestic court Emissions reductions/mitigation Ireland Just transition litigation Private and family life Renewable energy Victim status

Coolglass Wind Farm Limited v. An Bord Pleanála

Summary:
In a January 2025 judgment, the Irish High Court of Planning and Environment ruled in favor of an appeal challenging the refusal of planning permission for a wind farm development. In doing so, it applied EU law and the European Convention on Human Rights (ECHR), as interpreted in the 2024 KlimaSeniorinnen judgment by the European Court of Human Rights, to find that the relevant planning authority needed to have regard to Ireland’s renewable energy targets.

Facts of the case:
In a judgment delivered on 10 January 2025, the Irish High Court of Planning and Environment ruled on the refusal of planning permission for a wind farm development. The case raised an issue of statutory interpretation relating to the Irish Climate Action and Low Carbon Development Act 2015, as amended in 2021. Planning permission for the wind farm project sought by Coolglass Wind Farm Limited was refused by the responsible board (An Bord Pleanála, Ireland’s national independent planning body that decides appeals on planning decisions made by local authorities) because it was contrary to planning regulation and rules on sustainable development of the area. Coolglass appealed, arguing that the Board was failing to approve adequate planning applications to meet Ireland’s 2030 renewable energy targets in the Climate Action Plan 2024, and was thereby failing to comply with its obligations under section 15 of the Climate Action and Low Carbon Development Act 2015. Coolglass also argued that the board’s decision was incompatible with the ECHR and with Regulation (EU) 2022/2577 of 22 December 2022 laying down a framework to accelerate the deployment of renewable energy.

Findings:
The Court, in a ruling by Humphreys J., upheld the appeal by Coolglass. It held that the board had failed to exercise its powers in a manner that complied (as far as practicable) with Ireland’s climate objectives and policies, and that this failure also constituted a breach of duty under the European Convention on Human Rights, read in light of the KlimaSeniorinnen judgment, as well as a breach of EU law obligations.

On the human rights aspect of the case, the Court ruled that:

109. I agree with the applicant that one must conclude that art. 8 of the ECHR imposes a positive obligation on the State to put in place a legislative and administrative framework with respect to climate change designed to provide effective protection of human health and life, and a further positive obligation to apply that framework effectively in practice, and in a timely manner.
110. Ireland has a framework of course but (as discussed above under the heading of EU law conformity) it is clear that it is not being complied with. The latter failure, on the logic of Klimaseniorinnen, involves a breach of art. 8 of the ECHR.
111. The application of the framework in practice is crucial. As we know from the termination of pregnancy context (Case of A, B and C v. Ireland [GC], no. 25579/05, ECHR 2010 (https://hudoc.echr.coe.int/fre?i=001-102332)), the Strasbourg court takes a dim view of a situation where there are laws on the books but a failure to put in place practical arrangements to implement them.
112. The problem for the opposing parties here is firstly that an interpretation of s. 15(1) that allows the climate goals in legislation to fall by the wayside due to a failure by the board to exercise discretionary powers to override development plans is an interpretation that fails to conform with ECHR obligations contrary to s. 2 of the 2003 Act.
113. Secondly, the failure by the board to use its discretionary powers in that manner constitutes a failure to act consistently with ECHR obligations contrary to s. 3 of the 2003 Act.
114. The board rather weakly raises the defence that a body corporate doesn’t have locus standi to argue for the right to a private life in a climate-relevant sense under art. 8 of the ECHR. But that isn’t the point of course. Whether an individual applicant has standing in a hypothetical case or not doesn’t affect the interpretation of a statutory provision. The point being made is that the court should interpret the 2015 Act as amended in an ECHR-compatible manner. Such an interpretation supports the applicant’s proposition that s. 15(1) should be read as meaning what it says.
115. Thus the requirement to read legislation in an ECHR-compliant manner supports an interpretation of s. 15 that goes beyond the board’s have-regard-to interpretation and the State’s meaningful engagement interpretation. It reinforces the applicant’s case that the interpretation should ensure that ECHR obligations are complied with in practice, including compliance in practice with stated goals in relation to renewable energy infrastructure.

Overall, the Court ruled that:

116. Sometimes (although not as often as some people think) the language, context and purpose of a provision, or the requirements of EU law conformity or ECHR conformity, pull in different directions. This is not such a case.
117. On the contrary, all vectors of interpretation point strongly in the same direction – the need for an imperative reading of s. 15(1) in line with what it says, namely that the board and any other relevant body is required to act in conformity with the climate plans and objectives set out in the subsection unless it is impracticable to do so.
118. I therefore reject the watered-down interpretations of s. 15(1) offered by the opposing parties here and accept the applicant’s interpretation.

The Court granted Coolglass’s appeal and ordered that its planning application be remitted to An Bord Pleanála for renewed consideration.

Suggested citation:
Irish High Court of Planning and Environment, Coolglass Wind Farm Limited v. An Bord Pleanála [2025] IEHC 1, H.JR.2024.0001244, 10 January 2025.

Last updated:
4 February 2025

Categories
2022 Children and young people Domestic court Emissions reductions/mitigation Imminent risk Indigenous peoples' rights Public trust doctrine Uncategorized United States of America

Sagoonick et al. v. State of Alaska I

Summary:
In 2017, sixteen children and young people — including some who were members of Alaskan Indigenous peoples — filed suit against the U.S. State of Alaska arguing by the state’s climate and energy policy violated their constitutional rights. Because the policy in question authorized and facilitated activities producing greenhouse gas emissions, the plaintiffs alleged violations of their due process rights to life, liberty, and property under the Alaskan Constitution, as well as their right to a stable climate system. The argued that the state government and relevant agencies had, “knowingly and with deliberate indifference”, created a dangerous situation for them, in violation of their constitutional rights. The plaintiffs also made an equal protection claim and alleged a violation of Alaska’s public trust doctrine.

The plaintiffs sought declaratory relief. They sought a declaration that the state had a constitutional duty to protect their constitutional rights, as well as a duty under the public trust doctrine to protect Alaska’s waters, atmosphere, land, fish, wildlife, and other public trust resources. They sought a declaration that the state’s climate and energy policy had violated their rights and placed them “in a position of danger with deliberate indifference to their safety” and had “materially caused, contributed to, and/or exacerbated climate change and discriminated against Youth Plaintiffs as members of a protected class, and with respect to their fundamental rights”. They sought an order for the state to prepare a complete and accurate accounting of Alaska’s GHG emissions and an enforceable state climate recovery plan.

Alaska Superior Court Judgment:
On 30 October 2018, the Alaska Superior Court rejected the case, arguing that it was indistinguishable from previous climate cases based on the public trust doctrine and that it concerned political questions which were not justiciable. The plaintiffs appealed.

Alaska Supreme Court Judgment:
In 2022, on appeal, the Alaska Supreme Court affirmed the dismissal of the case (see full text of the judgment below). The Court found that the applicants’ claims concerned non-justiciable political questions and found that it could not make “the legislative policy judgments necessary to grant the requested injunctive relief.”

Judge Maassen, dissenting, argued that he was “no longer convinced that nothing can be gained by clarifying Alaskans’ constitutional rights and the State’s corresponding duties in the context of climate change”, and that the public trust doctrine under the Alaskan Constitution provided a right to a livable climate.

Additional developments:
A follow-up case, Sagoonick et al. v. State of Alaska II, was filed in 2022.

Sagoonick IDownload

Suggested citation:
Supreme Court of Alaska, Sagoonick et al. v. State of Alaska I, 28 January 2022, No. 3AN-17-09910 CI.

Last updated:
14 November 2024