Tag: Domestic court proceedings

Categories
Business responsibility / corporate cases Children and young people Domestic court Emissions reductions/mitigation Evidence Right to a healthy environment Right to health South Africa

South African ‘Deadly Air Case’

Summary:
This case concerns toxic air pollution in the Mpumalanga Highveld, which is home to a dozen coal-fired power plants, a coal-to-liquids plant and a refinery. The case was brought by two environmental organisations – groundWork and Vukani Environmental Justice Movement in Action – represented by the Centre for Environmental Rights.

The applicants have petitioned the court to declare the unsafe levels of air pollution to be a violation of section 24a of the South African Constitution, which provides that “everyone has the right to an environment not harmful to their health or wellbeing”. 

The outcome of the case is currently pending before the Pretoria High Court, and Judge Colleen Collins has reserved judgment.

Claims:
The applicants’ complaints concern exposure to toxic chemicals emitted by the coal plants. This includes sulphur dioxide, heavy metals like mercury, and fine particulate matter. According to the applicants, the coal plants are responsible for the majority of these emissions, which are causing chronic respiratory illnesses such as asthma and lung cancer, and which also increase the risk of strokes, heart attacks, birth defects and premature deaths. 

The area in question has been recognized as a hotspot of pollution in excess of permissible levels. It has been claimed that this pollution is responsible for up to 10,000 excess deaths per year. But the Government has pointed to the existence of clean air regulations, and argued that there is no scientific evidence proving the link between the air pollution and the harms allegedly suffered by any particular individual. It has also highlighted the need to realize the right to a healthy environment progressively.

Amicus curia intervention by the UNSR:
David R. Boyd, the United Nations special rapporteur on human rights and the environment, intervened as an amicus curiae in this case. He argued that poor and marginalised people disproportionately carry the burden of toxic air pollution. It has been reported that Boyd’s arguments include consideration for the vulnerability of children to environmental threats.

Deciding body:
Pretoria High Court

Admissibility:
TBD

Merits:
TBD

Remedies and outcomes:
TBD

Further reading:
For more information from the Centre for Environmental Resources, click here.

Suggested citation:
South African ‘Deadly Air’ case, Pretoria High Court, hearings held on 17-19 May 2021.

Categories
Domestic court Emissions reductions/mitigation European Convention on Human Rights Italy Paris Agreement Right to a healthy environment

Giudizio Universale (The Last Judgment) (A Sud and Others v. Italy)

Summary:
On 5 June 2021, 203 plaintiffs (24 associations, 17 minors represented in court by their parents, and 162 adults) led by the environmental justice NGO A Sud filed a lawsuit with the Civil Court of Rome against the Italian State, represented by the Presidency of the Council of Ministers. The lawsuit is part of a campaign for awareness raising named “Giudizio Universale” (The Last Judgment).

The plaintiffs allege that the Italian State is fully aware of the climate emergency and the urgency of GHG emissions reduction, as demonstrated by official declarations and explicit acknowledgements by State representatives in recent years which produced environmental information as per Article 2(3) of the Aarhus Convention. Notwithstanding, the climate measures taken by the Italian State were insufficient. Limited emissions reductions had been achieved mainly due to the economic crisis and the following recessions, but it was projected that the State would not meet even modest reduction targets by 2030. These measures would not satisfy the climate obligations that the Italian State is required to observe and implement, originating from the UNFCCC, the Paris Agreement, and specific EU Regulations. Therefore, the plaintiffs allege that the State infringed human rights, including the right to a stable and safe climate, which interfaces with the principles in Article 6 of the Treaty of the European Union, and the rights recognized by Articles 2 (right to life), 8 (respect for private and family life), 14 (prohibition of discrimination) of the ECHR. The plaintiffs allege that this gives rise to non-contractual liability of the State under Article 2043 of the Italian Civil Code, and that responsibility may also be identified according to Article 2051 of the Civil Code as the State can be considered the guardian of the climate system.

The plaintiffs requested the judge to declare that the Italian State is responsible for failing to tackle the climate emergency and to order the State to reduce greenhouse gas emissions by 92% by 2030 compared to 1990 levels, applying the principle of equity and the principle of common but differentiated responsibilities (Fair Share).

Hearings:
The first hearing was held on 14 December 2021 in the form of an exchange of written briefs. The Italian State requested the judge to declare the complaint inadmissible, or to dismiss it on the merits as completely ill-founded. Subsequent oral hearings were held on 21 June 2022 and 13 September 2023.

Decision:
On 26 February 2024 the Court declared the complaints inadmissible for absolute lack of jurisdiction. Notably, the Court considered it impossible to verify the adequacy of the measures taken by the State to achieve its climate targets, noting that it lacked the necessary information to examine choices of such complexity. The Court also rejected the existence of State emissions-reductions obligations under private law that can be claimed by individuals, and invoked the principle of the separation of powers. The plaintiffs declared that they would challenge this judgment on appeal.

Appeal proceedings:
In November 2024, it was reported that the applicants had appealed the Civil Court of Rome’s decision, citing the success of the KlimaSeniorinnen case at the European Court of Human Rights as bolstering its case.

Date filed:
5 June 2021

Jurisdiction:
Civil Court of Rome

Status of the case:
First instance judgment; appeal pending

Suggested case citation:
Complete first instance judgment citation: A Sud Ecologia e Cooperazione ODV et al. v. Presidenza del Consiglio dei Ministri, Tribunale di Roma, Seconda Sezione Civile, n. 39415/2021, 26 febbraio 2024 [A Sud Ecologia e Cooperazione ODV et al. v. Presidency of the Council of Ministers, Civil Court of Rome, Secon Civil Section, n. 39415/2021, 26 February 2024], case under appeal.

Further reading:
English language: a summary of the legal action was provided by the applicant NGO here.

Italian language: all the documents from the proceedings and a review of relevant literature can be found on this website hosting the Observatory on Italian climate change litigation, edited by the students in Comparative Climate Change Law at the University of Salento.

Last updated:
13 November 2024

Categories
Business responsibility / corporate cases Children and young people Domestic court Emissions reductions/mitigation Extreme poverty Gender / women-led Indigenous peoples' rights Right to a healthy environment Right to health Right to housing Right to life Right to subsistence/food Right to water Self-determination The Philippines Vulnerability

Greenpeace Southeast Asia and others v. the Carbon Majors

Summary:
This case was brought before the Philippines’ Commission on Human Rights (CHR) by 12 organisations and 20 individuals, as well as over a thousand Filipino citizens who expressed their support for the case through a petition, against the so-called ‘carbon majors’, i.e. high-emitting multinational and state-owned producers of natural gas, crude oil, coal and cement, including BP, Shell and Chevron. The applicants based their case on research indicating that these ‘carbon majors’ are responsible for a large percentage of global greenhouse gas emissions. Citing the Philippines’ high degree of vulnerability to the effects of climate change, the applicants alleged violations of the rights to life, health, food, water, sanitation, adequate housing, and self-determination. They also specifically invoked the rights of vulnerable groups, peoples and communities, including women, children, people living with disabilities, those living in extreme poverty, indigenous peoples, and displaced persons. They invoked also the right to development, labor rights, and the right to ‘a balanced and healthful ecology’. This petition was brought after a number particularly destructive typhoons that affected the Philippines, including Typhoon Haiyan.

As a result of the petition, the CHR began a dialogical and consultative process, called the National Inquiry on Climate Change (NICC). This process aims to determine the impact of climate change on the human rights of the Filipino people, as well as determining whether the Carbon Majors are responsible for climate change.

On 6 May 2022, the Human Rights Commission released the findings of its inquiry.

Responsible instance:
The case was brought before the Philippines’ Commission on Human Rights, which is an independent National Human Rights Institution (NHRI) under the 1987 Philippine Constitution, established on 5 May 1987 by Executive Order No. 163.

Date filed:
22 September 2015

Procedural steps in the case:
On 10 December 2015, the Commission announced during the Paris Climate Change Conference that it would take cognizance of the case.

On 21 July 2016, the Commission enjoined the respondent Carbon Majors to file their comments or answers to the petition within forty-five days. Out of the 47 respondents summoned, 15 submitted a response. Thirteen amicus curiae briefs were received. The applicants filed a reply, to which seven of the carbon majors filed a rejoinder.

Beginning July and November 2017, the Commission conducted community visits and dialogues to select climate impacted areas.

On 11 December 2017, the parties held a first preliminary conference. The Commission used this opportunity to deny the respondents’ jurisdictional objections to the case. It asserted its authority to investigate the case and hold public hearings in 2018 in Manila, New York, and London.

In 2018, the Commission held six public hearings in the case.

Outcome of the NICC:
On 6 May 2022, the Human Rights Commission released the findings of its inquiry. In his introductory note, Commissioner Roberto Eugenio T. Cadiz outlined the lengths taken by the Commission to engage with the “carbon majors” over this case, and noted that corporate actors, and not just States, have an obligation to respect and uphold human rights under the UN Guiding Principles on Business and Human Rights (UNGP). He also noted the unprecedented nature of the claim, and the Commission’s own lack of resources in dealing with it. And he rejected the argument by the “carbon majors” that the Commission did not have territorial or subject matter jurisdiction to deal with the case, noting the interrelated nature of all human rights and the impact on the people of the Philippines.

In its report, the Commission began by reviewing the best available scientific knowledge on climate change. It set out, “as established by peer-reviewed science, that climate change is real and happening on a global scale”, and that it is anthropogenic, i.e. caused by human activity. It then set out that climate change is a human rights issue, noting its adverse impacts on human rights both internationally and in the Philippines. It focused particularly on impacts concerning the right to life, the right to health, the right to food security, the right to water and sanitation, the right to livelihood, the right to adequate housing, the right to the preservation of culture, the right to self-determination and to development, and the right to equality and non-discrimination, focusing on the rights of women, children, indigenous peoples, older persons, people living in poverty, LGBTQIA+ rights. It also noted the impacts on the right to a safe, clean, healthy and sustainable environment and on the rights of future generations and intergenerational equity.

After considering the duties of States to protect human rights, as the primary duty-bearers of human rights law, the Commission found that these rights also include extraterritorial obligations, and that while a balance between sovereignty and human rights must be sought, “States’ duty to protect is not confined to territorial jurisdiction”. It relied on international environmental law to identify the concrete procedural and substantive obligations on States in the context of climate change, and their obligation to protect vulnerable sectors against discrimination.

The Commission considered that the refusal of governments to engage in meaningful mitigation action regarding climate change constitutes a human rights violation. It held that “[t]he pursuit of the State obligation to mitigate climate change cannot just be framed as aspirational, where the standard of fulfillment is vague and the timeline is uncertain. Concrete metrics must be set against which States may be held accountable. Failing this, States enable the human rights of their citizens to be harmed, which equates to a violation of their duty to protect human rights” (p. 87). The absence of meaningful action to address global warming, it held, suffices in this regard; these obligations of States include an obligation to regulate corporate activities, and to establish a policy environment that discourages reliance on fossil fuels.

The Commission then turned to business responsibilities, noting that “a State’s failure to perform [its duty to enact and enforce appropriate laws to ensure that corporate actors respect human rights] does not render business enterprises free from the responsibility of respecting human rights.” Referring to the UNGP framework and the UN Global Compact as well as the OECD Guidelines for Multinational Corporations, it applied these standards to the context of climate change. It found that:

  • The anthropogenic contributions of the “carbon majors” to climate change is quantifiable and substantial;
  • The “carbon majors” had early awareness, notice or knowledge of their products’ adverse impacts on the environment and climate systems;
  • The “carbon majors” engaged in willful obfuscation or obstruction to prevent meaningful climate action;
  • The “carbon majors” have the corporate responsibility to undertake human rights due diligence and provide remediation, including through every entity in their value chain;
  • And the UNGPs may be relied on under the law of the Philippines.

It went on to issue a number of recommendations. Concerning States, it called for climate justice, including a pooling of resources and sharing of skills, and urged governments to:

  • Undertake to discourage dependence on fossil fuels, including by phasing out all coal power fossil fuel subsidies and other incentives;
  • To collaborate on innovative climate action and guarantee the enjoyment by all of the benefits of science and technology;
  • To cooperate towards the creation of a legally binding instrument to strengthen the implementation of the UNGPs, and provide redress to victims of corporate human rights impacts;
  • To concretize the responsibilities of corporate actors in the climate context;
  • To discourage anthropogenic contributions to climate change and compensate victims;
  • To ensure access to adaptation measures by all, as well as equality and non-discrimination in climate adaptation and mitigation measures;
  • And to ensure a just transition towards an environmentally sustainable economy;
  • As well as to fulfil climate finance commitments and devise new mechanisms for loss and damage from climate change-related events;
  • To adequately support and protect environmental defenders and climate activists;
  • To promote climate change awareness and education;
  • To include military operations and supply chains in carbon accounting;
  • And to strengthen shared efforts to conserve and restore forests and other terrestrial ecosystems.

The Commission also formulated concrete recommendations for the “carbon majors” themselves, urging them to:

  • Publicly disclose their due diligence and climate and human rights impact assessment results, and the measures taken in response thereto;
  • Desist from all activities that undermine the findings of climate science, including “climate denial propaganda” and lobbying activities;
  • Cease further exploration of new oil fields, keep fossil fuel reserves in the ground, and lead the just transition to clean energy;
  • Contribute to a green climate fund for the implementation of mitigation and adaptation measures;
  • And continually engage with experts, CSOs, and other stakeholders to assess and improve the corporate climate response through “a new chapter of cooperation towards a united front for climate action”.

Speaking directly to financial institutions and investors, the Commission noted their ability to “steer companies and industries towards a sustainable path by aligning lending and investment portfolios with targets set by science”. It considered that their role in financing sectors and projects that generate greenhouse gas emissions make them “similarly accountable for global warming”. Accordingly, they were urged to:

  • Refrain from financing fossil fuel related projects and instead direct capital towards green projects; and
  • Exert social, political and economic pressure on the fossil fuel industry to transition to clean energy by divesting financial instruments related to fossil fuels.

The Commission concluded by noting the role of UN institutions, NHRIs, and courts — reviewing examples of climate litigation such as the Urgenda or Leghari cases, noting that “even when courts do not rule in favor of the claimants, they still contribute to meaningful climate response through their elucidation of the law and the rights and obligations of the parties”. Similarly, NGOs, CSOs, the legal profession and individuals are recommended to champion human rights and continue engaging in strategic litigation to strengthen business and human rights norms, change policy, increase governments’ ambitions, and create precedents.

The Commission furthermore addressed the Philippines’ own lackluster record of climate action, making concrete recommendations to the government to, among other things, formulate a national action plan on business and human rights, declare a climate and environmental alert, and revisit its NDC under the Paris Agreement as well as implement coal moratoriums, transition to low-carbon transportation systems, implementing REDD+ measures and data building and reporting mechanisms, and create legislative change. It also recommended to the domestic judiciary to create rules of evidence for attributing climate change impacts and assessing damages, and take note of the anthropogenic nature of climate change.

Full text of the report:
The report of 6 May 2022 is available for download below.

CHRP-NICC-Report-2022Download

Suggested citation:
Philippines Human Rights Commission, In Re: National Inquiry on the Impact of Climate Change on the Human Rights of the Filipino People and the Responsibility therefor, if any, of the ‘Carbon Majors’, case nr. CHR-NI-2016-0001, Report of 6 May 2022.

Further information:
The full text of the petition is available here.

A blogpost on the importance of the report by Annalisa Savaresi and Margaretha Wewerinke-Singh is available on the GNHRE blog.

For additional resources provided by the Commission, such as transcripts of hearings and evidence submitted, click here.

Categories
Children and young people Climate-induced displacement Domestic court Emissions reductions/mitigation Pakistan Public trust doctrine Right to a healthy environment

Ali v. Pakistan

Summary:
This 2016 petition was brought against Pakistan in the name of a seven-year-old girl from Karachi, and challenges actions and inactions on the part of the federal and provincial government relating to climate change. The case is still pending.

Facts and claims made:
The petition, which is available on Climate Case Chart, was filed directly with the Supreme Court of Pakistan in Islamabad, and it alleges violations of constitutional rights, of the public trust doctrine, and of environmental rights. It challenges the environmental harms that are expected to result from the policy of burning coal to obtain electricity. The application challenges a plan to develop coal fields, which would massively increase Pakistani coal production and would displace local residents and degrade the local environment. The plan is linked to investments stemming from the China-Pakistan Economic Corridor, which supports coal field development and new coal-fired power plants in Pakistan.

Suggested case citation:
The Supreme Court of Pakistan, Ali v. Pakistan, petition filed on 1 April 2016

Categories
Domestic court Emissions reductions/mitigation Poland Right to a healthy environment

Stasiak, Górska, Nowakowski and others v. Poland

Summary:
In June 2021, the NGO ClientEarth announced that it was supporting five Polish citizens in bringing actions against the Polish government, contesting reliance on coal and the failure to take action to reduce carbon emissions. The claimants are arguing that they have a right to live in a healthy environment, and that this right is under threat due to the Polish government’s inaction when it comes to reducing emissions. They submit that they have suffered the effects of droughts, wildfires, flooding and crop failures on their lives and property due to climate change, and that these effects will continue to worsen.

ClientEarth is representing the claimants under Polish civil law that permits individuals to delegate environmental litigation to NGOs. Their cases are based on Polish personal rights (or “personal goods”) under the Polish Civil Code, including the rights to life, health and property, and Articles 2 and 8 ECHR (the rights to life and to private and family life, respectively).

Date of filing:
2021

Admissibility:
TBD

Merits:
TBD

Remedies:
TBD

Suggested case citation:
N/A

More information:
For more information on the case, click here.

To read the legal briefing provided by Client Earth, click here.

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

Belgian ‘Klimaatzaak’

Summary:

On 30 November 2023, a Court of Appeal in Brussels, Belgium, issued its judgment in the Urgenda-inspired “Klimaatzaak” (Dutch for “climate case”). Its judgment builds on a 17 June 2021 first-instance judgment, which held that Belgian climate policy was negligent and violated positive obligations under the European Convention on Human Rights (Articles 2 and 8). While confirming this part of the judgment for three of the four domestic governments involved, the appeal court overturned the first instance’s finding that, in light of the separation of powers, it could not set greenhouse gas reduction targets. The appeal court set clear targets for domestic emissions reductions, ordering reductions of 55 percent by 2030 (compared to 1990 levels).

First-instance judgment:

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 ultimately adjudicated in French.

On 17 June 2021, a court of first instance found that Belgian climate policy was negligent and violated positive obligations 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.

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 stated 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 stated that the four governments’ inadequate climate policy violated articles 2 and 8 of the European Convention on Human Rights (ECHR) (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.

Judgment on appeal:

On appeal by the applicants, who challenged the first-instance judgment over the decision not to order concrete reductions targets, the case was reviewed by the Brussels Court of Appeal. Its judgment, which was issued on 30 November 2023, confirmed that the 2020 climate policy of three out of the four respondent domestic governments had violated Articles 2 and 8 ECHR. In its judgment, the court ordered the Belgian state, the Flemish Region and the Brussels-Capital Region to reduce their greenhouse gas emissions more quickly, namely by 55 percent by 2030 (compared to 1990 levels). Meanwhile, it found that the Walloon region’s climate policy had progressed sufficiently to be in conformity with human rights law.

In its judgment, the court found that “in light of the prevailing consensus within the scientific community and the international political community, the three governments have violated Articles 2 and 8 of the European Convention on Human Rights (ECHR) and Articles 1382 and 1383 of the old Civil Code because they had not sufficiently reduced greenhouse gas emissions in 2020” (our translation). This violation was still ongoing because these governments have “set insufficiently strict targets and have not taken sufficiently far-reaching measures to sufficiently limit emissions by 2030”. The court found that “a reduction of -55% in GHG emissions by 2030 constitutes a minimum threshold, below which Belgium cannot go under penalty of violating Article 2 of the ECHR” (in the original French: une diminution de -55 % des émissions de GES à l’horizon 2030 constitue ce seuil minimal, en deçà duquel la Belgique ne peut aller sous peine de ne pas respecter l’article 2 de la CEDH). In doing so, it draws on the European Climate Law, which codifies the goals set out in the European Green Deal for the EU to become climate-neutral by 2050.

While the applicants had requested a penalty payment of 1 million euros per month, the appeal court deferred its ruling on this issue to await, among other things, emissions figures from the 2022-2024 period.

Status of case:

After the November 2023 ruling, further proceedings — in cassation, and potentially before the European Court of Human Rights — are possible in this case, which is accordingly not yet final.

On 18 April 2024, the applicants communicated that Flanders had filed a cassation appeal. Flanders was the only one of the domestic governments involved to lodge an appeal in cassation. The federal and Brussels governments had decided against a further appeal.

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

Brussels Court of Appeal, Klimaatzaak ASBL v. Belgium, case 2021/AR/1589, Judgment of 30 November 2023.

Full text:

For background information on the case, see here.

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

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

For the full second-instance judgment, click 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.

For a press release from the applicants concerning the second-instance judgment, click here.

Last updated:

7 September 2024

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

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

Summary:
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 contribution’ (NDC). These were submitted on 8 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
Australia Children and young people Domestic court Emissions reductions/mitigation Imminent risk

Sharma and Others v. Minister for the Environment

Summary:

In Sharma and Others v. Minister for the Environment, issued on 27 May 2021 by the Federal Court of Australia, a group of children and their litigation representative, Sister Marie Brigid Arthur, argued that the Australian Minister for the Environment owes them and other Australian children a duty of care in approving coal mining projects because of the risk of future climate change related harms, and sought an injunction against the project. Given the evidence of climate harms, the judge concluded that the Minister does have a duty of care towards children, but rejected the application for an injunction.

On 15 March 2022, the Government won its appeal against the judgment in this case. While the Full Federal Court upheld the primary judge’s factual findings, it unanimously (although based on several different strands of reasoning) overturned the ruling on the Ministry’s duty of care when exercising her statutory functions under the EPBC Act.

Date:

27 May 2021 (appeal judgment: 15 March 2022)

Merits:

The case concerned a decision by the Minister to approve the extraction of coal from a coal mine. The judge considered the available evidence about the degree of risk and the magnitude of the risk of harm alleged by the applicants, as well as the foreseeability and likelihood of that harm arising and being caused or contributed to by coal-related CO2 emissions. The judge concluded that the Minister does have a duty of care towards children.

The judgment recognizes that “the risk of harm to the Children from climatic hazards brought about by increased global average surface temperatures, is on a continuum in which both the degree of risk and the magnitude of the potential harm will increase exponentially if the Earth moves beyond a global average surface temperature of 2°C, towards 3°C and then to 4°C above the pre-industrial level.”

At issue was the question of whether the emissions from the mine would be within the remaining carbon budget to be respected in order to keep warming below 2 degrees Celsius. On this, and putting the onus of compliance with this budget on the respondent Minister, the Judge held that he did not have sufficient evidence to conclude that this would not be the case. He noted that:

“The Minister called no evidence. The Minister essentially contended that the Court should infer that the 100 Mt of CO2 would likely be emitted in accordance with the Paris Agreement. There is no sufficient basis for that inference. The Minister relied upon little else than speculation, in circumstances where the evidence showed that at least one of the potential consumers of the coal is not a signatory to the Paris Agreement.”

Remedies:

The Judge rejected the applicant’s request for an injunction, considering that the duty of care had not yet been breached, and that it was appropriate to await the outcome of the Minister’s decision-making process.

In a follow-up judgment, issued on 8 July 2021, the Judge ordered the Minister to pay the claimants’ costs, and held that the Minister has a duty to take reasonable care, in the exercise of her powers, to avoid causing personal injury or death to Australian children arising from carbon dioxide emissions.

Appeal:

The appeal by the Ministry of Environment challenged the primary judge’s finding of a duty of care as well as specific factual findings regarding global warming and the approved project’s contribution to that.

The Full Court upheld in full the factual basis of the case as established by the primary judge. With regards to the legal grounds, it concluded however that no duty of care for human safety should be imposed upon the Minister when exercising her power under the EPBC Act.

While each of the three judges emphasized different legal aspects, their reasoning essentially centered around the following arguments: Determining the point of breach of such a duty of care would prompt core policy questions unsuited to being answered by the judiciary. A common law duty of care would be inconsistent with the Minister’s statutory powers under the EPBC Act. There is no sufficient link between the Minister’s exercise of power and the potential harm inflicted on the children. Finally, the lack of control over the risk of harm, the absence of foreseeability of a causal injury, and indeterminacy were cited to argue against the imposition of the duty.  

Measures taken as a result of the judgment:

On 15 September 2021, the Minister granted approval for the proposed mine expansion.

Status of case:

Overturned on appeal (special leave application possible until 12 April 2022)

Suggested case citation:

Federal Court of Australia, Sharma by her litigation representative Sister Marie Brigid Arthur v. Minister for the Environment [2021] FCA 560, 27 May 2021, Bromberg J.

Federal Court of Australia, Minister for the Environment v Sharma [2022] FCAFC 35, 15 March 2022, Allsop CJ, Beach and Wheelahan JJ

Links:

For the full judgment of 27 May 2021, see here.

For the follow-up judgment of 8 July 2021, see here.

For the judgment on appeal (15 March 2022), see here.

Categories
2021 Deciding Body Domestic court European Convention on Human Rights Imminent risk Keywords Paris Agreement Right to assembly and association Right to freedom of expression Rights at stake State concerned Switzerland Year

Credit Suisse Climate Activists Trial (Lausanne)

Summary:
On 22 November 2018, a group of 20 to 30 climate activists from the collective “BreakFree Suisse”, among them the 12 complainants, occupied the entry halls of the Swiss bank Credit Suisse in Lausanne to demonstrate against the bank’s investment in fossil fuels. The protest aimed to draw attention to this issue by condemning the participation of the Swiss tennis player Roger Federer in the advertising campaign of this bank. To do so, the activists were dressed in sports clothes and staged a tennis match. While some activists complied with the police request to leave the premises, others had to be dragged out by the police.

The activists argued that they had been in a “justifiable state of emergency” (rechtfertigender Notstand) due to climate change and that their protest was therefore lawful.

On 13 January 2020, the Tribunal de police de l’arrondissement de Lausanne (“Police Court of the district of Lausanne”) ruled in favor of the protesters. The judge found that climate change posed an imminent threat and that the protest was therefore a necessary and proportionate means to achieve the activists’ intended goal.

On 22 September 2020, this decision was overruled by the Tribunal Cantonal du Vaud (“Vaud Cantonal Tribunal”). The Court argued that the activists could have protested the bank by using other means, such as political or legal instruments. It further found that climate change is an imminent threat and that measures must be taken to address it. However, the Tribunal Cantonal du Vaud doubted that the protest could have led to a reduction in greenhouse gas emissions. Furthermore, it also noted that the Swiss government is aware of the issue and has already taken necessary measures, such as ratifying the Paris Agreement. Finally, the Court held that it is not yet too late to take the necessary protective measures to combat climate change.

On 26 May 2021, the Swiss Bundesgericht (“Swiss Federal Supreme Court”) mainly upheld the Tribunal Cantonal du Vaud’s decision. It argued further that climate change may be considered an imminent threat and that the activists did not intend to protect a specific legal interest, but rather collective interests, namely the environment, health, or the well-being of the population, and thus, the protest was not lawful.

In a similar case in Geneva, a climate activist from the same collective was on trial after putting red handprints all over the front of the Swiss bank Credit Suisse.

Rights invoked:
The complainants invoked their rights to freedom of expression (Article 10 European Convention on Human Rights (ECHR)) and assembly and association (Article 11 ECHR).

The Swiss Bundesgericht argued that the complainants are not entitled to invoke Articles 10 and 11 ECHR in this context because they had no right to enter private property to take their actions. The freedom of assembly does not include the right to gather on private property without the owner’s consent. Consequently, the claimants could not rely on Articles 10 and 11 ECHR.

Date of decision:
26 May 2021

Suggested case citation:
Swiss Bundesgericht, 12 climate protesters v. ministère public central du canton de Vaud, 6B_1295/2020, Judgment of 26 May 2021.


Links:
For the judgment of the Swiss Bundesgericht (in French), see here.

For the judgment of the Tribunal Cantonal du Vaud (in French), see here.

For the judgment of the Tribunal de police de l’arrondissement de Lausanne (in French), see here.  

Categories
Domestic court Emissions reductions/mitigation Fossil fuel extraction Guyana Right to a healthy environment

Thomas & De Freitas v. Guyana

Summary:
On 21 May 2021, two Guayanese citizens filed a case in the domestic courts of Guayana, alleging that their constitutional rights had been violated by Guyana’s approval of oil exploration licences to a joint venture involving ExxonMobil and other corporations. They invoked the government’s duty to protect their right to a healthy environment, as well as the right of future generations to the same.

The case documents are not yet available. However, the case has been reported widely. For more information, see:

Background information:
The Human Rights Committee had previously voiced concerns about the oil exploitation licenses granted by the Guayanese government. In its 2020 List of Issues, it asked the Government to provide information on “concerns that large scale oil extraction significantly increases greenhouse gas emissions, causes ocean acidification and
rising sea-levels, and adversely affects the most vulnerable groups in the State party, including the Amerindian and fishery-dependent communities and individuals living in poverty’.