Categories
2021 Domestic court Indigenous peoples' rights Norway Right to culture

Statnett SF et al. v. Sør-Fosen sijte et al.

Summary:
In this judgment of 11 October 2021, the Supreme Court of Norway found that the construction of two wind power plants on the Fosen peninsula interfered with the rights of reindeer herders to enjoy their own culture under Article 27 of the International Covenant on Civil and Political Rights (ICCPR). The Supreme Court unanimously found that there had been an interference with this right, and accordingly invalidated the wind power licence and the expropriation decision.

Facts of the case:
In 2010, two wind power plants (the Roan and Storheia plants) received a license from the Norwegian Water Resources and Energy Directorate. These plants are located within the Fosen grazing district, where the Sør-Fosen sijte and Nord-Fosen siida keep their reindeer. In 2013, the Ministry of Petroleum and Energy rejected their claim that the construction of the wind power plants interfered with their right to cultural enjoyment. Construction on the plants commenced while the issue was pending before the courts, and the two plants – which are part of the largest onshore wind power project in Europe — were ready to become operational in 2019 and 2020, respectively.

Merits:
The main issue at stake before the Supreme Court was whether the development interfered with the reindeer herders’ rights under Article 27 ICCPR. That provision enshrines the right of persons belonging to an ethnic, religious or linguistic minority to enjoy their own culture, in community with the other members of their group. It was undisputed before the Supreme Court that reindeer husbandry is a protected cultural practice. The Supreme Court relied on the Court of Appeal’s finding that the winter pastures near Storheia and Roan had in practice been lost to reindeer husbandry, and that the wind power plants in question are a threat to the reindeer industry’s existence on Fosen peninsula absent remedial measures.    

The Supreme Court, relying on the work of the UN Human Rights Committee, held that the total effect of the development in question determines whether a violation of the ICCPR right has taken place. Although there is no room for a proportionality assessment, a balance must be struck if the rights under Article 27 ICCPR conflict with other fundamental rights. The Supreme Court established that the right to a healthy environment might constitute such a conflicting right.

The Supreme Court found that the herders’ cultural rights would face significant adverse effects and be violated if satisfactory remedial measures were not implemented. The Supreme Court agreed that a “green shift” and increased renewable energy production are important, but found that there were alternatives that were less intrusive for the reindeer herders less, so that there was no collision between environmental interests and the reindeers’ right to cultural enjoyment in this case.   

Remedial awards:
In its ruling, the Court of Appeal had previously stipulated sizeable compensation for the winter feeding of fenced-in reindeer, and on this basis it had found no violation of the right to cultural enjoyment. In the Supreme Court’s view, such a solution was too uncertain to be a determining factor in whether Article 27 ICCPR had been violated. In any event, the courts could not rely on such a measure as a part of the reindeer herders’ duty to adapt.  

Separate opinions:
N/A

Implementation:
N/A

Date of judgment:
11 October 2021

Links:
A summary of the judgment (in English) is available here.

The full text of the judgment (in Norwegian, English translation forthcoming) is available here.

Suggested citation:
Supreme Court of Norway, Statnett SF et al. v. Sør-Fosen sijte, HR-2021-1975-S, Judgment of 11 October 2021.

Categories
2021 Children and young people Domestic court Emissions reductions Human dignity Right to a healthy environment Right to health United States of America

Held and Others v. Montana

Summary:
In Held and Others, sixteen young plaintiffs — aged between two and eighteen — brought a case against the U.S. state of Montana alleging violations of the state constitution due to climate change. The young plaintiffs in this case, which is to some extent comparable to the Juliana litigation, alleged that they are already experiencing ‘a host of adverse consequences’ from anthropogenic climate change in Montana, including increased temperatures, changing weather patterns, more acute droughts and extreme weather events, increasing wildfires and glacial melt. They argued that this was causing health risks, especially for children, and that the defendants, among them the state of Montana, its Governor, and various state agencies, had “act[ed] affirmatively to exacerbate the climate crisis” despite their awareness of the risk of harm to the applicants. The plaintiffs sought a declaration that their right to a clean and healthy environment includes a right a stable climate, and that existing approaches to greenhouse gas emissions in Montana violate constitutional provisions, including the right to a clean and healthy environment; the right to seek safety, health, and happiness; and the right to individual dignity and to equal protection. They also sought injunctive relief, namely an order to account for the state’s Montana’s greenhouse gas emissions and to develop and implement an emissions reductions plan.

Decision on the admissibility:
On 4 August 2021, a the Montana First Judicial District Court for Lewis and Clark County declared the case admissible in part. The prayer for injunctive relief in terms of emissions accounting, a remedial plan or policy, the appointment of expert to assist the court, and retain jurisdiction until such orders are complied with were rejected. However, the court declared the constitutional rights claims admissible, including the claim about the plaintiffs’ ‘fundamental constitutional right to a clean and healthful environment’, which — as the plaintiffs submit — ‘includes a stable climate system that sustains human lives and liberties’.

Date filed:
13 March 2020

Date of admissibility decision:
4 August 2021

More information:
The original complaint is available from the Western Environmental Law Center.
The admissibility decision is available over on climatecasechart.com.

Suggested citation:
Montana First District Court for Lewis and Clark county, Held and others v. State of Montana and others, order on motion to dismiss, 4 August 2021, Cause No. CDV-2020-307.

Categories
2021 Domestic court Nepal Right to a healthy environment

Interim Order against Nepali Fiscal Policy

Summary:
On 18 June 2021 the Supreme Court of Nepal issued an interim order requiring the government not to implement its plan to extract and export natural resources, namely sand, pebbles, and stones, in order to reduce its trade deficit. In doing so, it cited the fundamental right to a healthy environment, as well as the constitutional protection of resources for the enjoyment of future generations.

The Constitutional bench referred to Article 30 of the Constitution, which enshrines the right to a clean and healthy environment. It also referred to Article 51(g) of the Constitution, which concerns the protection, promotion and use of natural resources. It referred to the need to ensure inter-generational coordination and environmental balance.

Further information:

The order was made by a Constitutional bench made up of Chief Justice Cholendra Shumsher Rana and Justices Deepak Kumar Karki, Mira Khadka, Hari Krishna Karki and Bishwambhar Prasad Shrestha on 18 June 2021. Orders of the Supreme Court are available here.

Suggested case citation:
The Supreme Court of Nepal, Interim Order against Nepali Fiscal Policy, issued on 18 June 2021

To read more about the case in English, click here.

Categories
2021 Belgium Domestic court Emissions reductions European Convention on Human Rights Private and family life Right to life

Belgian ‘Klimaatzaak’

Summary:

On 17 June 2021, a Brussels court of first instance issued its judgment in the Urgenda-inspired Belgian “Klimaatzaak” (Dutch for “climate case”).

The applicants in this case alleged, among other things, that the four Belgian governments (i.e. the three regional governments and the federal state) had violated human rights law, and were obligated to reduce Belgium’s greenhouse gas emissions by 40% by 2020 compared to 1990 levels.

The case was delayed for almost three years because of proceedings contesting the language of the case, which was adjudicated in French.

On 17 June 2021, a court of first instance found that Belgian climate policy was negligent and violated the duty of care under human rights law. At stake were, among other things, violations of Articles 2 and 8 ECHR, in claims inspired by the Dutch Urgenda case. However, the court of first instance also held that, in light of the principle of separation of powers, it could not set greenhouse gas reduction targets for the Belgian governments.

Key points of the first-instance judgment:

The Brussels court of first instance not only declared the complaint of the applicant association, VZW Klimaatzaak, admissible, but also that of the 58,000 co-plaintiffs. Belgian law does not allow for an actio popularis, but the first-instance court recognized that all of the applicants faced a risk of material, physical or moral damage. In doing so, it referred to the risks to human and animal health and to the territorial integrity of the Belgian state, and especially of the Flemish region, which was particularly at risk of harms caused by sea level rises. The best available science, as reflected in existing diplomatic consensus, did not leave room for doubt about the existence of a real risk from dangerous climate change. This meant a serious risk that current and future generations would see their daily lives profoundly impacted (“profondément perturbées”). The fact that other Belgian citizens could bring a similar claim did not change this.

The judgment also states that the federal state and the three regions are jointly and individually responsible for the risk of harm at stake, despite the complex structure of the Belgian state.

Lastly, the judgment states that the four governments’ inadequate climate policy violates articles 2 and 8 of the European Convention on Human Rights (which enshrine the right to life and the right to respect for private and family life, respectively).

However, the court did not order the injunction claimed by the applicants for concrete reduction targets. The applicants had requested an injunction to the effect that the Belgian state should reduce greenhouse gas emissions by 42% by 2025 and by 55% by 2030.

The applicants have indicated that they will appeal the judgment and take a case to the European Court of Human Rights in Strasbourg, making this the potential fifth climate application to the ECtHR. The applicants have indicated that the reason for the latter step is that delays in the domestic judicial system mean that the case might only be concluded in 9.5 years. Citing the urgency of emissions reductions, they have indicated that they will claim that there is no effective remedy available on the domestic level.

Suggested citation:
Francophone first instance court of Brussels, 4th chamber, Klimaatzaak ASBL v. Belgium, no. 2015/4585/A, Judgment of 17 June 2021, available at https://prismic-io.s3.amazonaws.com/affaireclimat/18f9910f-cd55-4c3b-bc9b-9e0e393681a8_167-4-2021.pdf

Full text:

For background information on the case, see here.

For a summary (in Dutch) by Klimaatzaak, see here.

For the full judgment (in French), see here.

Further reading:

For more on this case, see the blog post by Matthias Petel and Antoine De Spiegeleir in the Sabin Center’s Climate Law Blog, available here.

Categories
2021 Business responsibility Domestic court Emissions reductions The Netherlands

Milieudefensie and others v. Royal Dutch Shell PLC

Summary:

This case was brought as a class action tort suit by a group of NGOs, as well as more than 17,000 individuals represented by Milieudefensie. The applicants claimed that Royal Dutch Shell had an obligation to reduce its carbon emissions relative to 2019 levels by 2030 across its entire energy portfolio. It represents a groundbreaking advance in the context of business responsibility for human rights impacts.

Date:

26 May 2021

Facts:

The court extensively discussed the science on climate change and its impacts, reductions targets, and the existing international instruments at length. It reiterated the reduction goals set out in the Paris Agreement.

Admissibility:

The court described the case as a public interest action. These are allowed under Dutch law, and the court noted that the common interest of preventing dangerous climate change by reducing CO2 emissions can be protected in a class action. It discussed at length whether the cases shared a ‘similar interest’, which is a requirement under the Dutch Civil Code. This requirement entails that the interests in question must be suitable for bundling into a class action so as to safeguard an the legal protection of the stakeholders.

In determining whether the individual applicants had locus standi, the court held that they had no separate interest beyond that represented by Milieudefensie before the court, and wrote off the individual claims.

Merits:

Relying on domestic law, human rights law, and soft law instruments, the domestic court interpreted the unwritten standard of care contained in Dutch domestic tort law.

Book 6, Section 162 of the Dutch Civil Code proscribes acts that conflict with what is generally accepted according to unwritten law. The court held that this standard of care also applies to Royal Dutch Shell. Applying this standard, the court held that Shell was obliged to reduce its CO2 emissions by net 45% at end 2030, relative to 2019. This reduction obligation relates to Shell’s entire energy portfolio and all of its aggregate emissions. This is an obligation of result for the activities of the Shell group itself, and a best-efforts obligation with respect to its business relations and end-users. Because Shell has the ability to influence these relations, it is expected to use its influence to bring about emissions reductions.

Remedies:

The judgment is subject to appeal, but the court rendered it provisionally enforceable, despite noting the possibility of irreversible negative consequences for Shell.

Separate opinions:

None

Measures taken as a result of the judgment:

Pending

Status of case:

Decided, appeal pending

Suggested case citation:

The Hague District Court, Milieudefensie and Others v. Royal Dutch Shell PLC and Others, case number C/09/571932, Judgment of 26 May 2021.

Links:

For the full judgment, see here.

For a summary in English, see here.

Categories
2021 Brazil Deforestation Domestic court Individual responsibility Right to a healthy environment

Ministério Público Federal v. de Rezende

Summary:
This case concerns the responsibility of an individual (a farmer in the Amazonia region of Brazil) for deforestation and thus for climate change, including human rights impacts.

The Ministério Público Federal (MPF) had brought a tort case against the farmer, Dauro Parreiras de Rezende, for causing the deforestation of 2,488.56 hectares of Amazon rainforest between 2011 and 2018. This had allegedly violated the right to a healthy environment as enshrined in the Brazilian Constitution. On 16 April 2021, a Federal Environmental and Agrarian Court granted an injunction ordering the removal of cattle from the land in question.

Climate Case Chart reports that MPF is seeking up to R$ 85.4 million (ca. $17 million USD) in damages for the climate damage itself, i.e., the value of the emissions related to the deforestation in question, human rights violations due to collective pain and suffering, other environmental damages, and compensation for the farmer’s illegal profits due to the deforestation.

More information:

For more detail and the text (in Portuguese) of the petition and judgment, visit Climate Case Chart.

For a newspaper report on the case (in Portuguese), see here.

Suggested case citation:
Federal Environmental and Agrarian Court, Ministério Público Federal v. de Rezende, petition filed on 7 April 2021

Federal Environmental and Agrarian Court, Ministério Público Federal v. de Rezende, preliminary decision issued on 16 April 2021

Categories
2021 Access to a remedy Children and young people European Court of Justice Non-discrimination Private and family life Right to life Victim status

Armando Carvalho and Others v. Parliament 

Summary:
This case, also known as ‘The People’s Climate Case’, was brought by families from different Member States of the European Union. The families, who are active in the agricultural or tourism sectors, brought the case to the General Court of the European Union together with a Swedish association representing young indigenous people. They claimed that the measures to reduce greenhouse gas emissions that had been laid down by a legislative package from 2018 were not far-reaching enough. They demanded stricter measures: the aim should be to reduce greenhouse gas emissions by at least 50 – 60% by 2030, when compared to 1990 levels. In doing so, the applicants argued that an insufficient reduction in greenhouse gas emissions infringed their fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union, namely the right to life (Article 2), the right to the integrity of the person (Article 3), the rights of the child (Article 24), the right to engage in work and to pursue a freely chosen or accepted occupation (Article 15), the freedom to conduct a business (Article 16), the right to property (Article 17) and the right to equal treatment (Articles 20 and 21).

The General Court declared the action inadmissible because the claimants had no locus standi. The claimants appealed to the Court of Justice. They claimed that the Court should set aside the order under appeal, declare the actions at first instance admissible, and refer the case back to the General Court. The Court of Justice dismissed the appeal. The Court held that the claim that an act of the EU infringes fundamental rights is not sufficient to establish admissibility of an action brought by an individual.

Deciding body:
European Court of Justice (European Union)

Date of resolution:
25 March 2021

Admissibility:
The General Court declared the action inadmissible because the claimants did not satisfy any of the locus standi criteria under its strict ‘Plaumann’ test. The Court held that the claimants were not individually concerned, because they were not the addressees of the acts at issue. The Court of Justice dismissed the appeal, and emphasized that the mere fact of alleging that a legal act of the Union infringes fundamental rights does not mean that an individual’s action is admissible; otherwise the meaning of the admissibility requirements laid down in the TFEU would be meaningless. According to the case-law of the Court of Justice, the European Union courts cannot, without exceeding their powers, deviate from the express provisions of the TFEU, this also applies to the fundamental right to effective judicial protection enshrined in the Charter of Fundamental Rights of the European Union

Full text
The full text of the decision is available here.

Further reading:
On the 2019 decision on the case by the General Court, see Gerd Winter, ‘Armando Carvalho and Others v. EU: Invoking Human Rights and the Paris Agreement for Better Climate Protection Legislation’ 9(1) Transnational Environmental Law (2020), 137-164, available here.

Suggested case citation:
ECJ, Armando Carvalho and Others v. The European Parliament and the Council, no. C-565/19 P, Judgment of 25 March 2021.


Categories
2021 Children and young people Domestic court Emissions reductions Germany Paris Agreement

Bundesverfassungsgericht, Order of 24 March 2021

Summary:
On 21 April 2019, the German Federal Constitutional Court (‘Bundesverfassungsgericht’) issued a historic judgment quashing parts of the German Climate Protection Act. The judgment considered that the existing measures for climate protection impermissibly deferred the emissions reductions necessary for meeting Paris Agreement goals into the future, i.e. post-2031, thereby shifting the responsibility for reductions onto future generations, who would have to accept dramatic limitations on their freedoms as a result.

Admissibility:

Merits:
In its judgment, First Senate of the German Federal Constitutional Court held that the parts of the German Federal Climate Change Act of 12 December 2019 (Bundes-Klimaschutzgesetz – KSG) governing national climate targets and the emissions allowed annually until 2030 were incompatible with fundamental rights. This finding was based on the absence of specified emission reductions after 2030. The Court emphasized the principle of inter-generational justice stemming from Art. 20a of the German Basic Law.

The KSG creates an obligation to reduce greenhouse gas emissions by at least 55% by 2030 relative to 1990 levels. The Bundesverfassungsgericht held that the legislator had not violated its constitutional duty to protect the complainants from the risks of climate change or to take climate action (as required by Article 20a of the German Basic Law) by passing the KSG into law. However, it found that the provisions in questions irreversibly offloaded emission reduction burdens into the future, namely the time period after post-2030. The Bundesverfassungsgericht drew on the constitutional climate goal arising from Article 20a of the German Basic Law, which requires — in line with the targets set out in the Paris Agreement — that increases in the global average temperature should be limited to well below 2°C, and preferably to 1.5°C above pre-industrial levels. The Court found that the statutory provisions in the KSG on reducing greenhouse gas emissions from 2031 onwards were insufficient, meaning that a great burden would be placed on the enjoyment of fundamental freedoms by future generations. This violated the constitutional rights of the applicants, in the sense of their fundamental freedoms (including, among others, Art. 2(1) GG) in the sense of an advance interference-like effect (eingriffsähnliche Vorwirkung).

In all other respects, the constitutional complaints were rejected. This includes the rejection of complaints about current-day interferences with the rights to life and physical integrity, and complaints by applicants from Bangladesh and Nepal.

Remedies:
The court ordered the legislator to enact provisions specifying the adjustment of reduction targets for greenhouse gas emissions for periods after 2030 in greater detail by 31 December 2022 that.

Separate opinions:
None

Implementation measures taken:
TBD

Date:
24 March 2021

Type of Forum:
Domestic

Status of case:
Final

Suggested case citation:
German Bundesverfassungsgericht, Judgment of the First Senate of 24 March 2021 – 1 BvR 2656/18 -, N. 1-270, http://www.bverfg.de/e/rs20210324_1bvr265618.html.

Links:
Judgment in German

Summary in English

Categories
2021 Business responsibility Domestic court Extraterritorial obligations Standing/admissibility The United Kingdom

Okpabi and Others v. Royal Dutch Shell and Others

Summary:
In October and December 2015, the Ogale and Bille Nigerian communities filed parallel complaints against the UK company Royal Dutch Shell plc (Shell) and its Nigerian subsidiary Shell Petroleum Development Company (SPDC) in the UK High Court. The claimants sought a remedy for the extensive oil pollution caused by Shell arguing that it had affected their livelihoods and the environment. They claimed that Shell had failed to prevent oil spills and did not conduct proper clean-up. The plaintiffs argued that Shell had not seriously prevented contamination of agricultural land and waterways. They argued that Shell, as the parent company, owed them duty of care because it exercised significant control over the material aspects of SPDC’s operations and was responsible for them.

In January 2017, the High Court held that the claimants could not sue Shell in English Courts. The Court held that there was not sufficient evidence that Shell exercised a high degree of oversight, control or direction over SPDC. It therefore had no legal responsibility as a parent company for pollution by its Nigerian subsidiary. The Court of Appeal upheld the High Court’s decision in February 2018. The Court held that the parent company did not hold a duty of care towards the affected communities. In May 2020 the plaintiffs filed an appeal with the UK Supreme Court, arguing that the parent company Shell owed them a common law duty of care in respect to the extensive environmental harmed caused by their business operations in Nigeria. On 12 February 2021, the Supreme Court allowed the appeal and ruled that the case could proceed in the UK Courts. The decision determined that there is an arguable case that Shell is legally responsible for the pollution caused by the activities of its subsidiary to the Ogale and Bille communities.

Date of decision:
12 February 2021

Admissibility:
The UK Supreme Court ruled that UK courts have jurisdiction over the case, due to the fact that the parent company may owe the plaintiffs a duty of care and therefore the action against Shell constitutes a triable issue.

Merits:
TBD

Remedies:
TDB

Suggested citation:
UK Supreme Court, Okpabi and Others v. Royal Dutch Shell and Others, UKSC 2018/0068, Judgment of 12 February 2021, [2021] UKSC 3.

See also:
The similar (on the facts) case of Milieudefensie and Others v. Royal Dutch Shell PLC (before the Dutch courts).

For the full judgment, click here.

To watch a webcast of the hearing, click here.

Categories
2021 Domestic court Emissions reductions European Convention on Human Rights France Paris Agreement Private and family life Right to life

Notre Affaire à Tous and Others v. France (‘L’affaire du siècle’)

Summary:
The L’affaire du siècle (French for “affair of the century”) is a French climate justice campaign initiated by four organisations (Fondation pour la nature et l’homme, Greenpeace France, Notre affaire à tous and Oxfam France) on 17 December 2018 to bring the French State to justice for its inaction in the fight against global warming. A legal action against the State was filed with the Paris Administrative Court on 14 March 2019. On 3 February 2021, in a decision that the associations described as ‘a historic victory for the climate’, this court confirmed the existence of a causal link between environmental damage and the failure of the State to adequately combat climate change. It ordered the State to submit written observations within a two-month time frame.

Rights invoked:
Among other things, the applicant organisations relied on Articles 2 and 8 ECHR and the French Charter of the Environment, as well as the”right to a preserved climate system”. The plaintiffs argued that this right stems from national and international law such as the Stockholm Declaration, the World Charter for Nature, the Rio Declaration, the UN Framework Convention on Climate Change, the Kyoto Protocol, the Paris Agreement, the Climate action and renewable energy package for 2020.

Findings on the merits:
The court found that the State had not respected its greenhouse gas reductions commitments and had therefore committed a “fault”. It accordingly held that, “[i]n line with the commitments that it had made within the framework of the first carbon budget, which it failed to respect, the State must be regarded as responsible […] for part of the ecological damage observed”.

The Administrative Court of Paris thereby confirmed that there was a causal link between the environmental damage and the inaction of the French government in combating climate change. In other words, it recognized that the government’s inaction had caused ecological damage, and that the State should be held responsible for at least part of this damage. The court ordered the government to show, within 2 months, the measures it intended to take against climate change. The court reserved the rest of its judgment until after it had received these submissions.

Date of filing:
14 March 2019

Date of decision:
3 February 2021

Further information:
The full text of the judgment (in French) can be found here.

The applicant organisations are active on Twitter at @laffairedusiecl, and they have a website that can be found at https://laffairedusiecle.net/.

Suggested citation:
Paris Administrative Court, Notre Affaire à Tous and Others v. France (‘L’affaire du siècle’), case nos. 1904967, 1904968, 1904972, and 1904976/4, Judgment of 3 February 2021.