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Author: Earth Refuge

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Daniel Billy et al. v Australia

Date: 22 September 2022

Court: United Nations Human Rights Committee

Citation: Views adopted by the Committee under Article 5 (4) of the Optional Protocol, concerning Communication No. 3624/2019

Short summary 

The indigenous minority group of four low-lying islands in the Torres Strait region, one of the most vulnerable populations to climate change impacts, filed a petition against the Australian government alleging a violation of articles 2, 6, 17, 24 and 27 of the International Covenant on Civil and Political Rights (ICCPR) due to Australia’s failure to implement measures for mitigation and adaptation to climate change, threatening habitability on the islands and displacement of the Torres Strait Islanders. In finding a violation of articles 17 and 27, the Committee requires Australia to make full reparation to individuals, providing adequate compensation, engaging in meaningful consultation with affected communities for assessment and continue implementing strategies for the safe existence of the islands and their inhabitants.

Summary by: Irene Sacchetti

Link to Original Judgement

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Weight of decision 

Though not legally binding, for the first time the Committee ascertains State’s responsibility for climate inaction leading to a violation of multiple rights, including cultural rights under the ICCPR.

Key facts 

The petitioners’ claims were based on Australia’s failure to implement adaptation strategies (e.g., infrastructure such as sea walls) and mitigation measures to reduce GHG emissions to combat adverse climate change impacts. They argued that sea level rise — already causing coastal erosion – flooding, and the destruction of marine ecosystems and resources all result in violations of Islanders’ rights to life and a healthy environment (article 6), home (article 17), practice cultural traditions on ancestral land (article 27) and intergenerational equity (article 24).

Citing the Teitiota decision, Australia responded that the petitioners “invoke a risk that has not yet materialized” and that “the State party is taking adaptation measures in the Torres Strait, thus rendering the harm invoked by the authors too remote to demonstrate a violation of the right to life.”

The Committee was asked to determine whether Australia violated the Covenant by failing to implement adaptation and/or mitigation measures to combat adverse climate change impacts within its territory resulting in harms to the authors’ rights.

Previous instances 

None: The petitioners’ rights under the ICCPR are neither protected by the Australia Constitution nor other domestic legislation – and the highest Court in Australia has ruled that the state have a duty of care to prevent environmental harm – so this was a case of first impression before the Committee.

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UK Government v. Friends of the Earth

Date: 18 July 2022 

Court: High Court of Justice Queen’s Bench Division Administrative Court 

Citation: [2022] EWHC 1841 (Admin) 

Short summary 

The High Court found that the UK’s net zero strategy is in violation of the Climate Change Act 2008, as it does not meet Government obligations to produce detailed climate policies evidencing how the UK will meet its legally-binding climate budgets.  

Summary by: Olivia Amura

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision 

This case was decided by the High Court of Justice, the senior court of England and Wales. 

Key facts 

In January 2022, ClientEarth (an environmental law charity) filed a case to the High Court challenging the UK Government (“the Government”) on their inadequate net zero strategy. After the case was granted permission to proceed in March 2022, ClientEarth teamed up with Friends of the Earth (a nonprofit organisation that undertakes campaigns and work for environmental objectives) and the Good Law Project (a nonprofit that relies upon the law for public protection) to prepare a full hearing in the High Court. “The Claimants” (ClientEarth, Friends of the Earth, Good Law Project) argued that (a) the Government had failed to demonstrate that its policies will sufficiently reduce emissions to meet its carbon budgets and (b) the current net zero strategy had failed to include sufficient information about the policies and their effects to a standard to allow proper scrutiny. The Claimants’ arguments, subsequently, lead to the assertion that the Government had breached its obligations under the Climate Change Act 2008 (“CCA”).  

Summary of holding 

The Court asserted that the Minister for Business, Energy and Industrial Strategy, who signed off the net zero strategy, did not have the legally required information on how carbon budgets would be met when he approved the strategy. The Claimants asserted that ‘the Secretary of State [failed] to comply with his duty […] if his numerical projections show that his proposals and policies would reduce GHG emissions by only a proportion (e.g. 95%) of the reductions required to meet the carbon budgets’ [162]. This led the Court to ultimately deduce that ‘without information on the contributions by individual policies to the 95% assessment, the Minister could not rationally decide for himself how much weight to give to those matters’ [213] and, therefore, be fully informed when signing off the net zero strategy. 

The Court also found that Parliament and the public were not adequately informed about the impact of current emissions cuts from net zero policies and the reductions needed to meet the sixth carbon budget. The Claimants submitted that the net zero strategy report, required under CCA s.14(1), ‘failed to set out the numeric contributions of individual policies and proposals toward reducing GHG’ [226], therefore sufficient scrutiny was not possible. The defendant, by contrast, asserted that whilst the required report must ‘set out’ [226] proposals and policies, it does not demand ‘an explanation or quantified information to show that his proposals and policies will enable the carbon budgets to be met’ [227]. The Court rejected the Defendant’s position, stating that it is ‘the responsibility of the Secretary of State […] to lay a report before Parliament under s.14’ [256] that is ‘legally adequate’ [259], as required under CCA obligations. 

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PSB et al. v. Brazil (on Climate Fund) 

Date: 1 July 2022

Court: The Brazilian Federal Supreme Court

Citation: ADPF 708

Short summary  

Brazil’s Supreme Court became the first in the world to recognize the Paris Agreement as legally equivalent to a human rights treaty which supersedes national law. The Court ordered the Brazilian government to reactivate its Climate Fund, holding that not abiding by its national climate policy constitutes a breach of the Federal Constitution, which requires the State to protect the environment for current and future generations. 

Summary by: Sophie Sklar 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This case is binding on the government of Brazil and may be influential in other countries.  

Key facts 

This case was first filed in 2020 by four political parties: the Workers’ Party, the Socialism and Liberty Party, the Brazilian Socialist Party and the Sustainability Network. 

The petitioners argued that Brazil’s Climate Fund – created as part of the country’s national climate policy plan – violated the Federal Constitution by not supporting any projects that mitigate climate change. The plaintiffs sought a declaration of “unconstitutional omission” for failing to reactivate the Fund. (While Brazil’s Ministry of the Environment is obligated to prepare an annual plan for the Climate Fund within Brazil, it had not done so since 2019.) 

This case was brought within the context of Brazil’s negligible efforts to combat climate change, both domestically and abroad. The presiding judge cited the high rates of deforestation of the Amazon, and Brazil being the world’s fifth-largest carbon emitter as evidence of the Brazilian climate crisis. 

The federal government made two main arguments in response: 

  • First, that the Court’s interference in this matter would violate the separation of powers doctrine, as this judgement would compel the executive branch to reactivate the Climate Fund via the legislative branch. 
  • Additionally, that, since the Climate Fund was derived from multilateral treaties on climate change and was not Brazilian law, the federal government was not bound by it. 

The petitioners claim that abandoning the Climate Fund violated the Brazilian Federal Constitution, citing the obligation of the Union, the States, the Federal District, and Municipalities to “protect the environment and fight pollution in any of its forms” and “to preserve forests, fauna and flora.” 

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West Virginia v. EPA 

Date: 30 June 2022 

Court: Supreme Court of the United States 

Citation(s): West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022) 

Short summary  

Conservative states and coal companies challenged potential rulemaking by the Environmental Protection Agency which could phase out electricity generation from coal-fired power plants in the United States. In a landmark ruling, the Supreme Court sided with petitioners, holding that the Clean Air Act does not permit such extensive regulations. As a result, it is now significantly more difficult for the federal government to limit carbon emissions absent new legislation from Congress.  

Summary by: David Cremins

Link to Original Judgement

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Weight of decision  

This decision is binding on all United States federal and state courts. 

Key facts 

The Environmental Protection Agency (EPA) has authority to regulate the emission of carbon dioxide and other greenhouse gases from certain sources under the Clean Air Act (CAA). See Massachusetts v. EPA. Following Massachusetts, typically only the federal government can be sued for failing to adequately limit (or overly limiting) carbon pollution under the CAA, see City of New York v. Chevron; American Electric Power Co. v. Connecticut, and then usually only by states, not individuals, see Washington Environmental Council v. Bellon.  

Under § 111 of the CAA, EPA can develop a “best system of emissions reduction” to limit their accumulation in the atmosphere. Historically, this authority has been exercised by, for instance, requiring both new and existing power plants to utilize certain technologies to limit carbon emissions. The implementation of these rules is then carried out by the states. See Alaska Department of Environmental Conservation v. EPA. With the need to quickly decarbonize to combat the climate crisis, however, the EPA has, under Democratic presidential administrations, sought to curtail carbon emissions more aggressively from the U.S. energy sector, especially from coal-fired power plants.  

Previous instances  

In 2015, under the Obama Administration, the EPA proposed the Clean Power Plan (CPP) rule which, in part, encouraged “generation shifting” from coal-fired to natural gas-fired power plants and renewable energy sources via a system of credits and offsets, as part of a cap-and-trade system. In 2016, the Supreme Court blocked implementation of the CPP rule and, under the Trump Administration, the EPA instead proposed the less ambitious Affordable Clean Energy (ACE) rule, claiming that § 111(d) of the CAA did not allow it to issue industry-wide generation-shifting rules as part of a best system of emissions reduction. Several states sued the EPA for unduly constraining its own authority and the D.C. Circuit agreed, blocking the ACE rule in American Lung Association v. EPA, No. 19-1140 (D.C. Cir. 2021). West Virginia and other states, along with private coal companies, then intervened and brought this case to the Supreme Court, seeking to vacate the D.C. Circuit’s holding and prevent the EPA from ever again promulgating a rule like the CPP. 

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Herrera Carrion v. Ministry of the Environment (Mecheros Case)

Date: 29 July 2021

Court: Multicompetent Chamber of the Provincial Court of Justice of Sucumbíos

Citation: Juicio No:  21201202000170, SEGUNDA INSTANCIA, número de ingreso 1

Short summary 

The Provincial Court of Justice of Sucumbíos stated that the Ecuadorian state disregarded the entitlement of nine girls to reside in a wholesome environment and infringed upon their right to health by failing to offer clean technologies to prevent pollution.

Summary by: Natalia Chirinos Arévalo

Link to Original Judgement

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Weight of decision 

As an appellate court of review, the ruling of the Multicompetent Chamber of the Provincial Court of Justice of Sucumbíos is binding on the state of Ecuador.

Key facts

The right to health is recognized and guaranteed in Article 32 of the Ecuadorean Constitution, but also in other international treaties binding on Ecuador, such as Article 10 of the Pact of San Salvador Protocol and Article 12 of the International Covenant on Economic, Social and Cultural Rights. The realization of a right to health is linked to the exercise of other rights, including rights to water and a healthy environment. Article 30 of the Constitution also guarantees people the right to live in a safe and healthy habitat; children and adolescents further have the right, in accordance with Article 45 of the Constitution, to have their integral health recognized and guaranteed.

On 20 February 2020, a group of nine girls from the provinces of Sucumbíos and Orellana filed a constitutional injunction (acción de protección) against the government of Ecuador. In their lawsuit, plaintiffs claimed that gas flaring is unlawful, although it can be authorized by exception, and that despite this, the State has made it a common practice, which constitutes a violation of their rights to health, water, food sovereignty, and a healthy environment, and the rights of nature. They furthermore argued that pollution of gas flaring causes serious impacts on the environment and on people’s health, damage to biodiversity and the cycles of nature, and contributes to climate change. Plaintiffs requested, inter alia, the annulment of all gas flaring authorizations, the immediate elimination of all flaring towers located in various areas of the Amazon where there is oil activity, and the prohibition of new oil-related flares in the region.

Previous instances

The first court to hear this case dismissed the constitutional injunction sought, stating that it wasn’t evident that there was a violation of constitutionally enshrined rights of the claimants. This verdict adopted the State’s stance that the presence of pollution should be redress via an administrative route, rather than a constitutional one.

Summary of holding

On 29 July 2021, the Provincial Court of Justice of Sucumbíos declared that “the Ecuadorian State has ignored the right of the plaintiffs to live in a healthy and ecologically balanced environment and their right to health by promoting polluting activities, and by refusing to use environmentally clean and energy-efficient technologies.” The Court indicated that the authorizations for gas flaring, as an activity associated with hydrocarbon production carried out by the Ecuadorian State, disregards various international commitments made by Ecuador in environmental matters. Among the most important of those commitments are Ecuador’s Nationally Determined Contributions, agreed to during the COP 21 meeting for the United Nations Framework Convention on Climate Change.

As a result, the Court ordered an update to the plan to provide for the gradual and progressive elimination of the gas flares, with those located in places close to the populated centers being the first to be removed within 18 months, and all gas flares to be removed by December 2030. In addition, the Ministry of Energy and Non-Renewable Natural Resources may grant authorizations for new clean technologies located away from populated centers.

Potential takeaways for future climate migration litigation 

  • The decision in the Caso Mecheros – as it is commonly known – in responding favourably to a lawsuit filed by nine girls from the Amazon, was received as a historic triumph. It creates legal precedent for displaced populations in Ecuador, insofar as it links the consequences of gas flaring with violations of fundamental, constitutionally enshrined rights.
  • The judgment highlights the adverse health effects, including cancer, suffered by numerous citizens because of the pollution caused by gas flaring. Consequently, it is arguable that the prohibition of gas flaring, as mandated by the court’s decision, should be integrated into the public policies to other countries in the near future. The evidence presented by the plaintiffs, detailing the detrimental health impacts stemming from gas flaring, could be presented to underscore this point. Furthermore, an additional line of argument could be established on the premise that the gas flaring has compelled the population to relocate due to the direct infringement on their health and well-being.
  • The rights at stake predominantly pertain to third-generation human rights, encapsulating the social, cultural, economic, and environmental aspects of individual and communal welfare. This connects to a growing trend in Latin American jurisprudence, whereby the rights of nature, indigenous groups, and future generations, and international climate commitments, have been found enforceable by national courts (see, e.g., summaries of cases from Colombia, Paraguay, and Suriname).
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Sanchez v. Mayorkas

Date: 7 June 2021

Court: United States Supreme Court

Citation: 141 S. Ct. 1809 (2021)

Short summary  

The U.S. Supreme Court foreclosed a pathway to permanent residency for certain Temporary Protected Status (TPS) recipients. TPS is commonly used to allow nationals of countries experiencing environmental disasters to temporarily live and work in the United States.

Summary by: Vanessa Rivas-Bernardy

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision

This decision is binding on all United States federal and state courts.

Key facts

In 2001, El Salvador experienced several severe earthquakes, and the U.S. government designated the country for Temporary Protected Status (TPS). TPS is a humanitarian relief program through which individuals in the United States who are nationals of certain countries designated by the U.S. president are granted permission to live and work in the United States for a fixed period of time. The president may designate countries experiencing unsafe living conditions, such as armed conflict or environmental disasters, for as long as those conditions last.

Petitioner Jose Santos Sanchez was a Salvadoran national who entered the United States in 1997 without inspection by an immigration officer at a port of entry. When El Salvador was designated for TPS, Sanchez applied and was granted TPS that same year, notwithstanding his entry to the United States without inspection as that typically does not preclude a grant of TPS.

In 2014, Sanchez applied for Lawful Permanent Residence (LPR) status under Section 1255 of the U.S. immigration code. Section 1255 governs the adjustment to LPR status by nonimmigrants, who are defined as foreign nationals with a temporary grant of lawful presence. It generally requires “an admission” into the country, which is defined as “the lawful entry of the [noncitizen] into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. 1255.

Previous instances

U.S. Citizenship and Immigration Services—the adjudicating agency—denied Sanchez’s application for lawful permanent residence, determining he was ineligible because he entered the country without inspection. Sanchez challenged the decision, and the district court found for Sanchez, reasoning that because Sanchez’s TPS conferred him with nonimmigrant status, he was eligible for Section 1255 adjustment. The Third Circuit Court of Appeals reversed the district court’s decision, holding that Sanchez was ineligible for permanent residency despite his TPS. Two other circuit courts of appeal shared the Third Circuit’s approach, while three had reached the opposite conclusion.

Summary of holding

The Supreme Court unanimously held that the petitioner was not eligible for LPR status. Although the TPS statute provides that TPS recipients who apply for permanent residency should be considered to have nonimmigrant status, which is the first requirement for Section 1255 adjustment of status, the Court held the admission requirement was a second, separate requirement that the petitioner did not satisfy. The Court reasoned that the TPS statute provision that confers recipients with nonimmigrant status “does not aid the TPS recipient in meeting 1255’s separate admission requirement,” as “[l]awful status and admission are distinct concepts in immigration law, and establishing the former does not establish the latter.” Thus, the Court concluded that a grant of TPS does not constitute an admission, so any TPS recipient who—like the petitioner—has not been lawfully admitted to the country is ineligible for permanent residency.

Potential takeaways for future climate migration litigation

  • Although TPS can be renewed, and although it provides work authorization and protection from deportation, it is a temporary status. While the decision in Sanchez v. Mayorkas does not implicate the president’s ability to designate or renew TPS, itforecloses the path to permanent residency for many TPS recipients. TPS recipients who have been “admitted” to the United States (by way of a student or visitor visa, for example) still may be eligible for permanent residency. But any recipient who entered the United States without inspection and has never been “admitted” to the country cannot, without going through any other immigration pathway, become an LPR. Future litigation and policy advocacy must seek lasting protection for beneficiaries of temporary and partial forms of relief like TPS.
  • TPS has been a powerful tool for providing quick and widespread relief to individuals from countries experiencing large-scale environmental disasters. Because the U.S. president has the authority to designate and renew TPS, the program can provide relief while avoiding the lengthy lawmaking process otherwise required to create new immigration benefits. Additionally, the requirements are relatively simple: Any national of a designated country who has been in the United States continuously since the country’s designation is eligible for TPS (provided they are not excluded by ineligibility criteria). As such, it is a fast way to confer benefits on relatively large populations, which is crucial for providing protection to individuals affected by rapid-onset disasters caused by climate change.
  • The Biden Administration acknowledged the above in its October 2021 report on the Impact of Climate Change Migration—the U.S. government’s first report addressing this nexus—which came out of President Biden’s February 2021 executive order (E.O. 14013) titled “Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration.” Though many countries seriously impacted by climate change have not been designated for TPS, like Pakistan, the Biden Administration has extended several existing TPS designations and has designated new countries for TPS in the years since the report. Since TPS is a form of relief that already exists and is thus more politically and logistically feasible to implement than creating new immigration pathways, insofar as the Biden Administration follows through on its commitment to addressing climate change migration, it is likely to do so in part through continuing to expand TPS.
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City of New York v. Chevron Corp. 

Date: 2 April 2021 

Court: United States Second Circuit Court of Appeals 

Citation(s): City of N.Y. v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021) 

Short summary  

New York City sued the five largest producers of fossil fuels for contributing to climate change under state tort law. The Second Court of Appeals affirmed the District Court’s dismissal of the suit, holding that state common law claims to redress greenhouse gas emissions are displaced by federal common law, which in turn is displaced by the Clean Air Act.  

Summary by: David Cremins

Link to Original Judgement

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Weight of decision  

This decision is binding on all courts in the Second District and persuasive in other Districts.  

Key facts 

New York City filed a federal lawsuit in the Southern District of New York against the five largest investor-owned fossil fuel producers seeking costs the City had incurred and would continue to incur to protect itself and its residents from the impacts of climate change. The City alleged that the defendants “produced, marketed, and sold massive quantities of fossil fuels” despite knowing for many years that the use of fossil fuels caused emissions of greenhouse gas emissions that would accumulate and remain in the atmosphere for centuries, causing “grave harm.” The City laid alleged state common law tort claims of public and private nuisance and illegal trespass, seeking money damages and an injunction to abate past injuries.  

Previous instances  

The district court dismissed the lawsuit, holding that federal common law should govern the City’s claims because they were based on transboundary emissions. The court further concluded that the Clean Air Act displaced any federal common law claims (see American Electric Power v. Connecticut) with regards to domestic emissions and that foreign emissions should not be regulated by a domestic court, so as not to infringe on the political branches. The City appealed to the Second Circuit Court of Appeals seeking reversal of the granted motion to dismiss.  

Summary of holding  

The Second Circuit Court of Appeals affirmed the dismissal of New York City’s lawsuit seeking climate change damages from oil companies, following the reasoning of the district court. First, the Second Circuit held that federal common law displaced the City’s state-law public nuisance, private nuisance, and trespass claims because the lawsuit would regulate cross-border greenhouse gas emissions, albeit “in an indirect and roundabout manner,” and because state law claims “would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” The Second Circuit then held that the Clean Air Act, in turn, displaced federal common law claims related to domestic emissions. The Second Circuit cited American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), as establishing “beyond cavil” that the Clean Air Act displaced federal common law nuisance suits to abate domestic transboundary greenhouse gas emissions. 

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 I.L. v. Italian Ministry of the Interior and Attorney General at the Court of Appeal of Ancona 

Date: 24 February 2021 

Court: The Supreme Court of Cassation – Second Civil Section 

Citation: Ordinance N. 5022/2021 of the Italian Corte Suprema di Cassazione (Sez. II Civile) 

Short summary  

This case established that Italian trial judges should collectively assess situations of environmental, social or climate degradation in humanitarian asylum cases, including whether natural resources are subject to unsustainable exploitation in the country of origin of the individual seeking refuge. The specific matter was remanded to a lower court.  

Summary by: Mackenzie Stern 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

As the highest court in Italy, this decision from the Court of Cassation is binding throughout Italy. It therefore sets out a test for all Italian trial judges to conduct in humanitarian protection cases which includes environmental, social, and climate degradation in addition to instances of armed conflict.  

Key facts 

IL, a citizen of the Niger Delta region of Nigeria left his home and sought international humanitarian protection in Italy. He fled in part due to armed paramilitary conflict in the region, which was exacerbated by environmental destruction, including numerous oil spills.  

Previous instances  

IL’s application for asylum was initially rejected by the Territorial Commission for the Recognition of International Protection, prompting an appeal to the Court of Ancona. Following a second rejection, IL appealed to the Court of Cassation, Italy’s highest appellate body.   

IL grounded his appeals on two theories. First, the courts below committed prejudicial error by failing to consider altogether the environmental disaster situation in the Niger Delta. Second, the trial judge violated the Consolidated Immigration Act (Legislative Decree) No. 286/1998 by not extending humanitarian protection based on this environmental disaster.  

Summary of holding 

The Court accepted IL’s appeal and referred the case back to the Court of Ancona. 

The Court determined that IL’s two grounds for appeal were well-founded. The Court acknowledged the existence of serious environmental instability in the Niger Delta, due to indiscriminate exploitation of the area by oil companies and ethnic-political conflicts. The Court found that the trial judge did not consider the context of environmental instability and widespread insecurity when considering eligibility for humanitarian protection.  

The Court held that: 

“It follows from the foregoing that if, as in the present case, the trial judge finds, in a specific area, a situation suitable for integrating an environmental disaster, or in any case a context of serious compromise of natural resources which is accompanied by the exclusion of entire segments of the population from their enjoyment, the assessment of the widespread dangerous condition existing in the applicant’s country of origin, for the purpose of recognizing humanitarian protection, must be conducted with specific reference to the particular risk for the right to life and dignified existence deriving environmental degradation, climate change or unsustainable development of the area.” (¶ 6) 

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 CAA de Bordeaux, 2ème chambre, 20BX02193, 20BX02195

Date: 18 December 2020

Court: Court of Administrative Appeal of Bordeaux 

Citations: N° 20BX02193, 20BX02195

Short summary  

In this judgement, the Court overturned the deportation order issued by the French department, Prefect of Haute-Garonne (“Prefect”), against Mr. Sheel on the grounds that it would subject him to a real risk of harm and even death given the high levels of air pollution in Bangladesh and the lack of access to adequate health care services, medication, and respiratory assistance equipment. 

Summary by: Jodie Tang 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

Though an individual judgment, this decision holds immense weight in France because it was the first time the courts extended protection to someone fearful of returning home due to environmental conditions.  

Key facts 

Mr. Sheel, a name given to him by the media, is a Bangladeshi national who entered France in 2011 and lodged an asylum application. His application was rejected in 2013, but he was granted a temporary residence permit due to his state of health from 2015 to 2017. In June 2019, the Prefect refused to renew his residence permit and required Mr. Sheel to leave France within 30 days and return to Bangladesh. This decision was overturned by the Administrative Court of Toulouse, which was appealed by the Prefect to the Court of Administrative Appeal of Bordeaux. 

Mr. Sheel suffers from a severe form of asthma and sleep apnea. Throughout his cases, however, the Prefect argued that medical evidence submitted by Mr. Sheel was inadequate to establish that he would not receive appropriate healthcare services in Bangladesh to treat his respiratory disease. He responded that, regardless of where he lived in Bangladesh, he would be unable to access appropriate medication, could not operate respiratory assistance devices in Bangladesh’s hot climate, and would have difficulty avoiding harmful air pollution.

Previous instances

On 15 June 2020, the Administrative Court of Toulouse annulled the decree of 18 June 2019 issued by the Prefect, where he refused to renew Mr. Sheel’s residence permit, ordered him to leave France and return to Bangladesh. The Court also overturned the decision of 5 August 2019 by the Prefect where he refused to grant Mr. Sheel’s request for family reunification with his wife. The Court ordered the Prefect to grant Mr. Sheel a residence permit pursuant to provision 11° of Article L.313-11 of the Code for the Entry and Residence of Foreigners and the Right to Asylum (“Provision 11”) and ordered the State to pay 1,500€ to Mr. Sheel’s counsel.  

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Friends of the Irish Environment CLG v. The Government of Ireland & Ors.  

Date: 30 July 2020  

Court: Supreme Court of the Republic of Ireland  

Citation(s): [2020] IESC 49 

Short summary  

The Supreme Court of Ireland quashed the government’s National Mitigation Plan to reduce carbon emissions, stating that the Plan was ambiguous in how it would achieve the “national transition objective”, an obligation undertaken by the Irish Government under the Climate Action and Low-Carbon Development Act 2015.  

Summary by: Samyuktha Banusekar

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This case was decided by the Supreme Court of the Republic of Ireland, the highest judicial authority in the Republic of Ireland.  

Key facts 

Friends of the Irish Environment (FIE), an advocacy group, filed a petition in the High Court challenging the National Mitigation Plan (“The Plan”) published on 19.07.2017, which was approved by the government and recognized under § 3 of the Climate Action and Low Carbon Development Act, 2015 (“The Act”). The Plan was alleged to be in violation of the Act, the Constitution of Ireland, and obligations under the European Convention on Human Rights (ECHR), especially with respect to the rights to life and private and family life. FIE stated that the Plan, seeking to transition to a low-carbon economy by 2050, was not consistent with the Act or the commitments that Ireland is obliged to fulfil under the ECHR, mainly due to the fact that it did not seek to cut short-term emissions in a substantial manner.  

Previous instances 

FIE pled before the High Court to either quash the Plan or decide that a new plan be devised. However, the High Court rejected FIE’s argument and ruled in favour of the Government, asserting that the Act had not mandated intermediate targets. The Court also held that the Plan was an initial step in the transition to a low-carbon economy that was to be achieved by 2050, and that neither Ireland’s Constitution nor the ECHR was violated by the Plan. This led to both an application to appeal in the Court of Appeal and an application to appeal directly to the Supreme Court; the latter agreed to hear the case. 

Summary of holding 

In 2020, the Supreme Court reversed the decision of the High Court and quashed the Plan. 

Primarily, the Supreme Court observed that § 4 of the Act requires the Plan to specify in what manner the nation will achieve its national transition objective, and that policy measures must concur with this. The Supreme Court held that the Plan must be specific in how the national transition objective is to be achieved by 2050, although the Plan is subject to revision every five years. The Court also attached weight to the opinions of Ireland’s Climate Change Advisory Council, a body established under the Act which tracks policy progress. When the Supreme Court reviewed the Plan, it observed that it fell short of the level of specific instructions that were expected under § 4. The Court also found its policies to be vague and reliant on future investigations. Thus, it was held that the Plan did not comply with the Act and that a new specific Plan should be devised. 

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