Category: 2020

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

Lho’imggin et al. v. Canada

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

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

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

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

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

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

Categories
2020 Business responsibility Deciding Body Domestic court Emissions reductions/mitigation Keywords Paris Agreement Private and family life Right to life Rights at stake The United Kingdom Year

R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd

Summary:
On 26 June 2018, the UK Secretary of State for Transport adopted the Airports National Policy Statement (ANPS), which governs the construction of a third runway at Heathrow Airport. This led to challenges from several environmental campaigners, including Friends of the Earth Ltd and Plan B Earth. Among other grounds, it was argued that the Secretary of State had disregarded the UK Government’s commitments under the Paris Agreement (ratified on 17 November 2016 by the UK) when designating the ANPS.

In 2019 the Divisional Court dismissed all of the objectors’ claims in two separate judgments. However, in 2020 the Court of Appeal allowed part of Friends of the Earth’s and Plan B Earth’s grounds, and held that the ANPS was unlawful (see judgment here). The Secretary of State did not appeal the Court of Appeal’s decision. However, Heathrow Airport Ltd, owner of Heathrow Airport, sought and was granted permission to appeal to the Supreme Court (UKSC). Heathrow Airport stated that it had already invested a large sum of money in promoting the third runway. On 16 December 2020, the Supreme Court unanimously decided to allow Heathrow Airport’s appeal on all grounds, ruling that the ANPS was lawful. However, the judgment states clearly that the climate must be considered at the planning permission stage of the third runway.

Human rights claims:
Under Section 3 of the Human Rights Act 1998, Friends of the Earth et al. argued against interpreting section 5(8) of the Planning Act 2008 in a way that excluded consideration of the Paris Agreement temperature limit. This would result in the development of large-scale national projects posing an unacceptable risk to people’s lives and homes, in breach of Articles 2 and 8 of the European Convention on Human Rights (ECHR).

The Supreme Court found that this reasoning must fail for two reasons. First, this argument had already been raised as a separate ground before the Divisional Court, where it was rejected. This decision was not appealed to the Court of Appeal, and was therefore not considered subject to the UKSC proceedings. Secondly, even if this argument were within the scope of the appeal, it would not have succeeded because any effect of the third runway on the lives and families of those affected by the consequences of climate change would result not from the designation of the ANPS but from granting permission to develop the construction project. As Heathrow Airport Ltd. had conceded, and the respondents agreed, the ANPS requires the third runway to be evaluated against the emissions targets in place if and when an application to develop the runway were to be made (para 113 of the UKSC judgment).

Further information:
Shortly after the Supreme Court’s decision, Plan B Earth announced in a press release that it intends to take the judgment to the European Court of Human Rights, arguing that reliance upon the 2 degrees Celsius target is a violation of the right to life (see here). Additionally, Plan B Earth served a pre-action letter on the UK Government alleging that its failure to develop a plan to address climate change is a violation of human rights as well as domestic and international law (see here).

Date of decision:
16 December 2020

Suggested case citation:
UK Supreme Court, R (on the application of Friends of the Earth Ltd and others) v. Heathrow Airport Ltd, UKSC 2020/0042, Judgment of 16 December 2020, [2020] UKSC 52

Case documents:
For the full judgment, click here.

To watch a webcast of the hearing, click here.

Further reading:
Joanne Hawkins, ‘A lesson in un-creativity: (R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52’, 23(4) Environmental Law Review (2021), 344-349. Available here.

Categories
2020 Business responsibility Domestic court Emissions reductions/mitigation France Standing/admissibility

Les Amis de la Terre, Survie v. Total SA

Summary:

Total S.A. is a French energy company with oil projects in Uganda and Tanzania. According to the French “loi de vigilance”, companies with a certain size that meet certain criteria must develop a “plan de vigilance” documenting how they and the companies in their supply chain respect human rights and the environment in their business activities. The applicants claim that Total’s environmental plan (part of the “plan de vigilance”) is not suitable for achieving the goals of the Paris Climate Agreement. In addition to better respect for human rights, the NGOs have demanded that Total take more effective measures to protect the environment. The first instance court, the Nanterre Civil Court of Justice, found that it had no jurisdiction over the case and that it fell instead within the jurisdiction of the commercial courts. The applicant NGOs appealed. The Court of Appeal of Versailles confirmed the judgment of the first instance, and the NGOs are now considering filing an appeal before the French Supreme Court.

Admissibility:
The Court confirmed the judgment of the first instance court, which had decided that the dispute fell within the jurisdiction of the commercial court. 

Date of filing:
16 March 2020

Date of decision:
10 December 2020

Suggested citation:
Court of Appeal of Versailles, Les Amis de la Terre, Survie v. Total SA, case no. RG20/01692, decision of 10 December 2020.

Full judgment:
The full judgment is available here.

Categories
2020 Canada Domestic court Emissions reductions/mitigation Fossil fuel extraction Non-discrimination Right to life Standing/admissibility

Cecilia La Rose v Her Majesty the Queen

Facts of the case:

Plaintiffs comprising of 15 children and youths from various parts of Canada sued the Government and Attorney General of Canada alleging violations of the right to life and right to equality under Sections 7 and 15 of the Canadian Charter of Rights and Freedoms, and the constitutional and common law duty to protect the integrity of common natural resources in public trust. According to the plaintiffs, the impugned conduct of the respondents consisted in: continuing to cause, contribute to and allow a level of greenhouse gas (GHG) emissions incompatible with a Stable Climate System (defined as a climate capable of sustaining human life and liberties); adopting GHG emission targets that are inconsistent with the best available science about what is necessary to avoid dangerous climate change and restore a Stable Climate System; failing to meet the Defendants’ own GHG emission targets; and actively participating in and supporting the development, expansion and operation of industries and activities involving fossil fuels that emit a level of GHGs incompatible with a Stable Climate System.

The defendants, while accepting the plaintiffs’ concerns about the seriousness of climate change and its potential impacts, filed a motion to strike their claim alleging that their claim is not justiciable.

Date of decision:

27 October 2020

Admissibility:

On 27 October 2020 the Federal Court in Ottawa granted the defendants’ motion. The Court answered the question of justiciability of the claims of Charter violations for the reason that the impugned conduct is of undue breadth and diffuse nature, and that the remedies sought by the plaintiffs were inappropriate. The Court also found that it had no constitutional obligation to intervene on the matter as there is room for disagreement between reasonable people on how climate change should be addressed. On the issue of justiciability of the public trust doctrine invoked by the plaintiffs, the Court found that the question of existence of the doctrine is a legal question which courts can resolve. However, the Court found that the plaintiffs’ claim did not disclose a reasonable prospect of success for the purposes of its admissibility.

Merits:

NA

Status of the case:

The plaintiffs have appealed against the Federal Court’s order before the Federal Court of Appeal.

Suggested case citation:

Federal Court of Ottawa, Cecilia La Rose v Her Majesty the Queen, T-1750-19, judgment of 27 October 2020, 2020 FC 1008

Case documents:

For the complaint filed by the plaintiffs on 25 October 2019, click here.

For the Government’s statement of defence notified on 7 February 2020, click here.

For the plaintiff’s reply to the Government’s motion to strike, filed on 31 August 2020, click here.

For the Federal Court of Ottawa’s order dated 27 October 2020, click here.

For the Memorandum of Appeal filed by the plaintiffs on 5 March 2021, click here.

Further reading:

Camille Cameron, Riley Weyman, ‘Recent Youth-Led and Rights-Based Climate Change Litigation in Canada: Reconciling Justiciability, Charter Claims and Procedural Choices,’ 34(1) Journal of Environmental Law (2021), Pages 195–207. Available here.

Categories
2020 Austria Domestic court Emissions reductions/mitigation European Convention on Human Rights Keywords Paris Agreement Private and family life Right to life Rights at stake Standing/admissibility State concerned Year

Greenpeace et al. v. Austria (The Zoubek Case)

Summary:
On 20 February 2020, Greenpeace Austria and other applicants called on the Austrian Constitutional Court to invalidate the preferential tax treatment of aviation companies over rail transportation companies in two Austrian tax laws. They claim that this preferential treatment would lead to an unjustified favoring of passenger air traffic and a disadvantage for less climate-damaging means of transport (e.g. railroads). Furthermore, the value-added tax exemption for cross-border flights and the kerosene exemption for domestic flights lead to higher prices for rail than for air travel and thus, contribute to climate change. Against this background, the applicants alleged that their rights under Articles 2 and 8 of the European Convention on Human Rights (ECHR) were violated, since the Austrian State has not fulfilled its duty to protect its citizens from the consequences of climate change.

On 30 September 2020, the Constitutional Court dismissed the application as inadmissible because it considered that the plaintiffs were not covered by the challenged legislation, which does not apply to rail transport, but only to air transport.

One of the applicants, who suffers from multiple sclerosis and Uhthoff’s syndrome, took this case to the European Court of Human Rights. He alleges a violation of his rights under, among others, Article 8 ECHR. The case, known as Mex M. v. Austria, it was filed on 25 March 2021 and has not yet been communicated.

Date of decision:
30 September 2020

Status of case:
Dismissed

Suggested citation:
Austrian Verfassungsgerichtshof, Greenpeace et al. v. Austria, Decision of 30 September 2020 – G 144-145/2020-13, V 332/2020-13.

Links:
For the decision of the Constitutional Court, see here.

For the application, see here.

Categories
2020 Domestic court Emissions reductions/mitigation Mexico Non-discrimination Right to a healthy environment Right to health

Greenpeace Mexico v. Ministry of Energy and Others

Summary:
This indirect amparo suit was brought by Greenpeace Mexico against the Mexican government, contesting the Mexican Sectoral Energy Plan for 2020-2024. Greenpeace argued that this policy promotes the use of fossil fuels over sustainable energy sources, thereby violating fundamental rights. The case invokes the pro persona principle and the human and constitutional rights to equality, a healthy environment, the protection of health, and access to renewable energy, as well as the legality principle. It also invokes the principle of progressive interpretation of human rights and the concept of positive and negative obligations.

In 2020, a Mexico City District Court ordered the suspension of the policy in an injunction.

Procedural steps:
The Third District Administrative Court for Mexico City declined to hear the case on grounds of lack of specialization in the matter. On 8 September 2020, the Mexico City District Court accepted to hear the case.

On 21 September 2020, the Mexico City District Court issued an injunction suspending the Sectoral Energy Plan (2020-2024). The court noted the imminence and irreparability of the harms at stake, finding that the it was an ‘indisputable fact’ that the limitation of the production and use of renewable energies encourages the operation of conventional electricity generation technologies using fossil fuels and thereby causing greater emissions, which affects human healthy and the environment. Because of this, the degree of imminence and irreparability of the risk at stake did not require specific proof, because it had been established through logical reasoning (p. 29).

Date of filing:
20 August 2020

Suggested citation:
Mexico City District Court, Greenpeace Mexico v. Ministry of Energy and Others, injunction no. 372/2020, 21 September 2020.

More information:
The full text of the injunction is provided on climatecasechart.com.

Categories
2020 Domestic court Emissions reductions/mitigation European Convention on Human Rights Ireland Paris Agreement Private and family life Right to life

Friends of the Irish Environment v. Government of Ireland

Summary:
In this case, brought before the Irish Supreme Court by the environmental activist group Friends of the Irish Environment, the Supreme Court quashed the Irish National Mitigation Plan of 2017 on the grounds that it was incompatible with the Irish Climate Action and Low Carbon Development Act 2015 (the 2015 Climate Act). The Supreme Court ordered the creation of a new, Climate Act-compliant plan.

Facts:
The case was premised on evidence that Ireland was set to miss its 2030 mitigation targets by a substantial degree.

Domestic instances:
The applicant’s claim was unsuccessful before the High Court. After the High Court proceedings were concluded, the Irish Supreme Court agreed to hear the case directly, without first seizing the Court of Appeal with the case. In doing so, the Supreme Court noted the “general public and legal importance” of the case, and the fact that the seriousness of climate change, the climate science, and the emissions at stake were not contested.

Merits:
In a unanimous seven-judge judgment, delivered by Chief Justice Clarke on 31 July 2020, the Supreme Court found that the Mitigation Plan did not reach the level of detail required under the 2015 Climate Act and was ultra vires that Act.

However, the judges did not allow the applicants’ rights-based arguments. Because Friends of the Irish Environment was a corporate entity, it did not enjoy the right to life or bodily integrity under the ECHR and the Irish Constitution, and lacked standing to bring these claims. Chief Justice Clarke CJ accepted that constitutional rights could be engaged in environmental cases, but held that the Irish Constitution does not contain a right to a healthy environment.

Date of judgment:
31 July 2020

Suggested citation:
Supreme Court of Ireland, Friends of the Irish Environment v. The Government of Ireland and Others, Judgment of 31 July 2020, [2020] IESC 49.

Further reading:
Orla Kelleher, ‘The Supreme Court of Ireland’s decision in Friends of the Irish Environment v Government of Ireland (“Climate Case Ireland”)’ in EJIL Talk!, 9 September 2020.

The full text of the judgment is available here.

Categories
2020 Business responsibility Deciding Body Domestic court Emissions reductions/mitigation France Keywords Paris Agreement Rights at stake State concerned Year

Notre Affaire à Tous and Others v. Total

Summary:
Along with 13 municipalities and four other NGOs, the French environmental organization Notre Affaire à Tous requested the oil company Total to take measures to prevent human rights and environmental violations. After a meeting with Total in June 2019, the complainants issued a “mise en demeure” (a letter of formal notice) to the oil giant that is responsible for more than two-thirds of France’s greenhouse gas emissions. They granted Total three months to include reasonable greenhouse gas emission reduction targets in its “due diligence plan” before they would file a lawsuit.   

On 28 January 2020, the complainants asked the District Court of Nanterre to order Total to align its practices with the goal of limiting global warming to 1.5 degrees Celsius. According to the complainants, Total has not provided sufficient detail in its “vigilance plan” to reduce its emissions and that the company is still not in compliance with international climate agreements, such as the 2015 Paris Agreement. Among other requests, the complainants ask the Court to order Total to reduce its net emissions by 40% by 2040 (compared to 2019).

Total claimed that the Nanterre District Court lacked jurisdiction and requested that the case be brought before the Commercial Court. On 11 February 2021, the pre-trial judge rejected this request and confirmed the jurisdiction of the District Court. In order to settle this dispute, the Versailles Court of Appeal confirmed the District Court’s jurisdiction and based its decision on “the legislator’s intention to entrust actions relating to ecological damage to specially designated judicial courts only.”

Rights invoked:
The complainants argued that Total’s obligation to take measures to prevent human rights and environmental violations stems from the Law on the Duty of Vigilance of 27 March 2017. This law obliges a company to establish a detailed “vigilance plan” which identifies and seeks to mitigate the risks to human rights, fundamental freedoms, the environment, and public health that may result directly or indirectly from a company’s activities.

Date of decision:
Pending

Suggested case citation:
Nanterre District Court, Notre Affaire à Tous and Others v. Total SA, complaint of 28 January 2020.

Links :
For the full complaint (in French), see here.

For an unofficial translation of the complaint (in English), see here.

For the order confirming the jurisdiction of the Nanterre District Court (in French), see here.

Categories
2020 Children and young people Domestic court Emissions reductions/mitigation Indigenous peoples' rights Standing/admissibility United States of America

Juliana et al. v. USA et al.

Summary:
On 12 August 2015, the case of Juliana v. the United States was filed in the U.S. District Court for the District of Oregon. The 21 young plaintiffs in this case, who were represented by the NGO “Our Children’s Trust”, asserted that the government had violated the youngest generation’s constitutional rights to life, liberty and property through its climate change-causing actions. Moreover, they stated that the government had failed to protect essential public trust resources by encouraging and permitting the combustion of fossil fuels. The Court of Appeal held that the plaintiff’s requested remedies should be addressed by the executive and legislative branches rather than by the courts. At present, the youth plaintiffs are planning to take the case to the U.S. Supreme Court or to settle discussions with the Biden-Harris administration.

Court’s decision:
U.S. District Court of Oregon Judge Ann Aiken declined to dismiss the lawsuit. She ruled that access to a clean environment constitutes a fundamental right. Judge Aiken’s judgment was reversed by a Ninth Circuit Panel due to the plaintiffs’ lack of standing to sue. The Ninth Circuit Court of Appeals recognized the gravity of the evidence on the plaintiffs’s injuries from climate change. The panel of judges recognized the existence of harms to the applicants, and the plausibility of arguing that these harms had been caused by climate change. Nevertheless, the Court held that the plaintiffs’ requested remedies should be addressed by the executive and legislative branches and not by the courts. One of the three judges affirmed the plaintiff’s constitutional climate rights in a dissent.

Date of decision:
17 January 2020

Further reading:
The full text of the Ninth Circuit’s order on interlocutory appeal is available here.

Suggested citation:
Juliana and Others v. the United States and Others, 947 F.3d 1159 (9th Cir. 2020).