Tag: Domestic court proceedings

Categories
2019 Deforestation Domestic court Emissions reductions/mitigation India Paris Agreement Public trust doctrine Right to life

Riddhima Pandey v. Union of India and Others

Summary:

The petitioner, Riddhima Pandey, a 9-year old girl residing in the Indian State of Uttarakhand, approached the National Green Tribunal (a special tribunal exercising jurisdiction over environmental cases) in order to review the State and concerned authorities’ inaction on mitigation measures in the face of climate science, and the systemic failure to implement environmental laws (in a manner that addresses climate change). The petitioner based her claim on the ground that the States duty to take the concerned climate action arose out of the public trust doctrine, which the Supreme Court of India has previously held to be based in fundamental rights, directive principles and the preamble of the Indian Constitution. The application in this case was explicitly inspired by the petition in Juliana v. US where also, the child petitioners invoked the public trust doctrine to contest the US government’s inaction.

The petitioner prayed for the court to, among other things, direct the concerned governmental authorities to properly account for the climate related impacts of industrial and infrastructure projects while granting environmental clearances, account for climate impacts of every individual case of forest diversion and ensuring sufficient compensatory afforestation, direct the government to prepare a national greenhouse gas emissions inventory as well as a national carbon budget against which particular projects’ emissions impacts could be assessed.

Date of decision:

15 January 2019

Tribunal’s decision:

The National Green Tribunal dismissed the case, reasoning that there is no reason to presume that the existing environmental legislations and regulations already address climate change and require that climate related impacts be sufficiently accounted for during environmental impact assessments.

Status of the case:

Decided.

Suggested case citation:

National Green Tribunal (New Delhi, India), Ridhima Pandey v. Union of India and Others, Application No. 187/2017, judgment of 15 January 2019)

Case documents:

For the petition filed before the National Green Tribunal on 25 March 2017, click here.

For the order of the National Green Tribunal on 15 January 2019, click here.

Categories
2018 Biodiversity Domestic court Emissions reductions/mitigation Imminent risk Margin of appreciation Nepal Paris Agreement Right to a healthy environment Right to health Right to life Right to subsistence/food

Padam Bahadur Shrestha v. Office of Prime Minister and Others

Summary:
The petitioner, Padam Bahadur Shrestha, had applied to the concerned authorities in Nepal to enact a separate law on climate change in August 2018, but did not receive a response. He thus filed a petition with the Supreme Court of Nepal alleging that the situation in Nepal is marked by absence of a special climate change legislation, inadequacies in existing environmental legislation in addressing climate change, and poor implementation of the State’s climate change policy. He argued that this suffices to establish a violation of the right to life, right to live in a healthy and clean environment, right to health care and right to food found in Articles 16, 30, 35, and 36 of the Nepali Constitution.

Date of decision:

25 December 2018

Court’s decision:

The Supreme Court of Nepal found that an amendment to the existing laws and introduction of a new consolidated law that addresses climate change was necessary and issued detailed directions on what features the new law must contain. It based this order on the reasons that such would facilitate Nepal’s compliance with its obligations under international law, including the Paris Agreement and that climate mitigation and adaptation directly concern fundamental rights including the right to life, right to have nutritious food and the right to a clean environment. It further held that although the Environmental Protection Act of 1997 addressed environmental protection along the dimension of climate change, its provisions were inadequate regarding climate change mitigation and adaptation.

Status of the case:

Decided.

Suggested case citation:

The Supreme Court of Nepal, Padam Bahadur Shreshta v Office of the Prime Minister and Others, NKP, Part 61, Vol. 3, judgment of 25 December 2018.

Case documents:

For the judgment of the Supreme Court of Nepal (in Nepali), click here.

For an unofficial English translation of the judgment (authored by Hardik Subedi), click here.

Categories
2018 Adaptation Domestic court Farming Human dignity Pakistan Public trust doctrine Right to a healthy environment Right to life

Leghari v. Pakistan

Summary:
In Leghari v. Pakistan, Asghar Leghari, whose family owns a farm in the Punjab province of Pakistan, claimed that his fundamental rights, including the right to life, the right to a healthy environment and human dignity, had been violated by the failure to take action against climate change, which was already impacting Pakistan in the form of floods and other climactic changes. The High Court of Lahore granted his claims in 2015, finding that the government had failed to implement its own Climate Change Policy and the corresponding implementation framework. The Court created a Climate Change Commission to monitor the government’s response.

Arguments by the applicant:
The applicant submitted that the domestic National Climate Change Policy of 2012 and the Framework for its implementation had not been implemented. Absent strategies to transition to heat resilient crops or to conserve water, he argued, he would not be able to sustain his livelihood as a farmer. He submitted that this inaction had violated his fundamental rights, in particular, Article 9 (right to life, including the right to a healthy and clean environment) and Article 14 (human dignity) of the Constitution, along with the constitutional principles of social and economic justice. In doing so, he also invoked the principles of public trust, sustainable development, the precautionary principle and the principle of intergenerational equity. The most immediate and serious threat to Pakistan, he argued, concerned water, food and energy security.

Findings:
The High Court of Lahore granted Mr. Leghari’s claims on 4 September 2015, finding that “the delay and lethargy of the State in implementing the Framework offend the fundamental rights of the citizens.” It ordered the government to nominate “climate change focal persons” to help ensure the implementation of the domestic legal Framework and to identify action points. To monitor the government’s progress, it also created a Climate Change Commission made up of government representatives, NGOs, and technical experts. A supplemental decision of 14 September 2015 nominated 21 Commission members and granted this body various powers. On 25 January 2018, the Court considered a report from the Climate Change Committee finding that, until January 2017, 66% of the Framework for Implementation Climate Change Policy’s priority actions had been implemented. The Court accordingly dissolved the Climate Change Commission, creating a Standing Committee on Climate Change in its place.

In the 2018 judgment, the Court considered the need for environmental, climate and water justice, and the need for both mitigation and, in the specific case of Pakistan, adaptation measures in response to climate change. It noted that “we have to move on. The existing environmental jurisprudence has to be fashioned to meet the needs of something more urgent and overpowering i.e., Climate Change.” (para. 12). It held, too, that “[f]rom Environmental Justice, which was largely localized and limited to our own ecosystems and biodiversity, we have moved on to Climate Justice.” (para. 20).

Further reading:
Birsha Ohdedar, ‘Climate Change Litigation in India and Pakistan: Analyzing Opportunities and Challenges’, in Ivano Alogna, Christine Bakker, and Jean-Pierre Gauci (eds), Climate Change Litigation: Global Perspectives (Brill | Nijhoff 2021), 103-123,  https://doi.org/10.1163/9789004447615_006.

Ivan Mark Ladores, ‘In the Name of Climate Change: How Leghari v Federation of Pakistan is Instrumental to the Pursuit of the Right to Life in the Philippines’, 5(2) Groningen Journal of International Law (2017), https://doi.org/10.21827/5a6af9f49574a.

Emily Barritt and Boitumelo Sediti, ‘The Symbolic Value of Leghari v Federation of Pakistan: Climate Change Adjudication in the Global South’ 30(2) King’s Law Journal (2019) 203-210, 10.1080/09615768.2019.1648370.

Suggested citation:
Lahore High Court, Asghar Leghari v. Pakistan, Case W.P. No. 25501/2015, Judgment of 25 January 2018.

Categories
2014 Children and young people Children's rights/best interests Climate-induced displacement Domestic court New Zealand Sea-level rise

AD (Tuvalu) v. New Zealand

Summary:
A family from Tuvalu appealed the decision to deport them from New Zealand, arguing that they would be at risk of suffering the adverse impacts of climate change — including the adverse effects of natural disasters — and socio-economic deprivation. Unlike in the domestic proceedings in the Teitiota case (domestically known as the AF (Kiribati) case), which made its way before the UN Human Rights Committee after leave to stay was refused, the applicants in this case received leave to remain in New Zealand on the basis of the exceptional circumstances of their case, which were understood to raise humanitarian concerns. The domestic court, the Auckland Immigration and Protection Tribunal, considered the family’s integration, the fact that they were “well-loved and integral members of a family”, and the best interests of their two children, aged three and five years old at the material time. Having regard to the UN Convention on the Rights of the Child, the Tribunal considered that the children’s young age made them more vulnerable to natural disasters and the adverse impact of climate change, and that it would be in their best interests to remain living with their parents in New Zealand. Concerning climate change and environmental degradation as a humanitarian issue, the Tribunal noted that it was “widely accepted that the impacts of climate change can adversely affect the enjoyment of basic human rights” and that “Tuvalu, as a country comprising low-lying topical islands (…) is particularly vulnerable to the adverse impacts of climate change. Environmental degradation caused or exacerbated by climate change was already a feature of life in Tuvalu”. Considering these factors on a cumulative basis, and finding that there was no adverse public interest in this case, the Tribunal found that “there are exceptional circumstances of a humanitarian nature, which would make it unjust or unduly harsh for the appellants to be removed from New Zealand.”

Type of proceedings:
Domestic

Status of case:
Final

Decision in this case:
The decision of the Immigration and Protection Tribunal in this case can be downloaded below.

Decision in AD (Tuvalu)Download

Suggested citation:
New Zealand Immigration and Protection Tribunal at Auckland, AD (Tuvalu) [2014] NZIPT 501370-371, Decision of 4 June 2014.

Further information:
For more on this case and an analysis, see Jane McAdam, ‘The Emerging New Zealand Jurisprudence on Climate Change, Disasters and Displacement’, 3(1) Migration Studies (2015), 131–142.

Last updated:
17 August 2023.