Categories
2021 Brazil Deforestation Domestic court Emissions reductions Paris Agreement Right to a healthy environment

Laboratório do Observatório do Clima v. Minister of Environment and Brazil

Facts of the case:

This is a class action suit brought before the 7th Federal Environmental and Agrarian Court of the Judiciary Section of Amazonas, by a network of 71 civil society organizations against the Environmental Ministry and the Brazilian Government. The petitioners allege that the respondents are committing a systematic violation of the right to an ecologically balanced environment as well as Brazil’s obligation under the Paris Agreement by- failing to update and implement Brazil’s ‘National Policy on Climate Change’ pursuant to the federal climate legislation, especially in the face of the updates in IPCC’s 6th Assessment Report; downgrading the ambition in Brazil’s ‘Nationally Determined Contributions’ communication under the Paris Agreement; failing to address the problem of deforestation in the Amazon; disproportionately favouring and intensifying the use of fossil fuel over renewable sources in its energy sector; and reducing the powers and capabilities of institutions for environmental protection that make up the national system for environmental protection and climate control, and thereby paralysing the accountability processes.

The reliefs sought by the petitioners include a declaration of non-compliance with constitutional law, and a mandatory injunction. As for the latter, the respondents ask for the preparation of an updated National Policy on Climate Change which takes into consideration all sectors of the economy, is in strict compliance with the federal climate legislation and principles recognised in the Paris Agreement, informed by the IPCC’s latest Assessment Report and the Paris Agreement’s 1.5ºC temperature target.   

Date of institution of proceedings:

26 October 2021

Admissibility:

TBD

Merits:

TBD:

Reliefs Awarded:

TBD

Status of the case:

Pending.

Further information:

On 11 November 2021, Judge Mara Elisa Andrade scheduled a conciliatory hearing between the parties to the case, which was subsequently cancelled on 25 November 2021 owing to the defendants’ lack of interest in settling the dispute through conciliation.

Case documents:

Petition (in Portuguese)

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. After the French State rejected the campaigners’ demand, 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.

On 14 October 2021, in its final decision, the court instructed the French State to take immediate and concrete measures to combat climate change and to repair the damage caused by its inaction by 31 December 2022.

Rights invoked:
Among other things, the applicant organisations relied on Articles 2 and 8 of the European Convention on Human Rights (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 on 3 February 2021 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 two-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.

In its final decision on 14 October 2021, the Administrative Court of Paris instructed the Prime Minister and the relevant ministers to take all possible measures to combat climate change and to repair the ecological damage and prevent it from getting worse. The Court specified the damage in the amount of the uncompensated share of greenhouse gas emissions under the initial carbon budget, i.e. 15 million tons of CO2 equivalents. It ordered that the recuperation of this damage must be effective no later than 31 December 2022. However, the Court did not consider it appropriate to impose a penalty on its order.

The Court noted that it is not its role to assess whether the totality of the measures taken is sufficient or not. Therefore, the specific measures to implement this recuperation may take various forms, and are left to the discretion of the French government. In its findings, the Court referred to the Commune de Grande-Synthe decision of the Conseil d’État (“Council of State”) of 1 July 2021. This decision states that the current measures are not sufficient to achieve the necessary reduction in greenhouse gas emissions.

Date of filing:
14 March 2019

Date of decision:
14 October 2021

Links:
For the full text of the final decision of 14 October 2021 (in French), see here.

For the full text of the first decision of 3 February 2021 (in French), see here.

For an unofficial translation of the first decision of 3 February 2021 (in English), see here.  

For an unofficial translation of the State’s reply (in English), see here.

For the plaintiff’s reply to the State’s arguments (in French), see 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’), Decision of 3 February 2021, Nos. 1904967, 1904968, 1904972, and 1904976/4.

Paris Administrative Court, Notre Affaire à Tous and Others v. France (‘L’affaire du siècle’), Decision of 14 October 2021, Nos. 1904967, 1904968, 1904972, and 1904976/4.

Further reading:
Christel Cournil, Antoine Le Dylio, Paul Mougeolle, ‘L’affaire du Siècle : French Climate Litigation between Continuity and Legal Innovations’, 14(1) Carbon & Climate Law Review (2020), 223-233. Available here.

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 Brazil Domestic court Emissions reductions Paris Agreement Right to a healthy environment

Thalita Silva e Silva and Others v. Minister of Environment and Others

Facts of the case:

This case was brought before the 14th Federal Civil Court of Sao Paulo by six youths as a popular action against the Brazilian Government, challenging Brazil’s updated ‘nationally determined contributions’ communication (NDC) that it submitted on 08 December 2020 pursuant to its obligation under Article 4.2 of the Paris Agreement. The petitioners argue that the NDC is regressive in comparison to its previous NDC, as it alters the baseline relative to which its emissions reductions targets for the years 2025 and 2030 were to be calculated. Both the initial and the updated NDC provided for a commitment to reduce greenhouse gas (GHG) emissions by 37% by 2025, and 45% by 2030 compared to 2005 levels, but the estimated emissions for the base year 2005 was increased from 2.1 to 2.8 billion tonnes of CO2 equivalent pursuant to an update in Brazil’s national GHG inventory report.

The petitioners contended that this regression in the updated NDC constituted a violation of Article 225 of the Constitution of Brazil, which provides for the right to an ecologically balanced environment. They further argued that there was a new GHG inventory report which estimated the 2005 emissions levels to amount to 2.4 billion tonnes rather than 2.8 billion tonnes as per the previous inventory report, and since this new report was published before the updated NDC was communicated, the updated NDC stands to be quashed in any case. The respondents contested the courts’ jurisdiction on the ground that the claim concerned an act of the Brazilian government at the international level. They also contended that the NDC in question met the criteria of progression and highest possible ambition.  

Date of decision:

28 May 2021

Admissibility:

The Federal Civil Court of Sao Paulo found that it was competent to adjudicate the case as per Article 109, Item III of the Constitution of Brazil which provides federal courts the competence to hear cases based on a treaty between the Union and other States or international bodies.

Merits:

The Federal Civil Court of Sao Paulo summarily dismissed the plaintiffs’ request for injunction on the count that the updated NDC maintains the emissions reduction targets specified in the previous NDC, and that the change in the estimated emissions during the base year in different national inventory reports was normal and expected in light of improvements in scientific understanding and techniques. It also highlighted that the Paris Agreement requires parties to periodically update their national inventories and inferred from this requirement that the targets in NDCs are to be understood in relation to the inventory available at the time of communicating them. The Court also considered the updated NDC to be ambitious as it contained a carbon neutrality commitment.

Status of the case:

The petitioners have appealed against the decision of the Federal Civil Court.

Suggested case citation:

Federal Civil Court of Sao Paulo, Thalita Silva e Silva & Ors. v. Minister of Environment & Ors., Ação Popular nº 5008035-37.2021.4.03.6100, decision of 28 May 2021.

Case documents:

Petition (in Portuguese)

Decision of the Federal Civil Court of Sao Paulo (in Portuguese)

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.