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Author: Earth Refuge

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Juliana v. United States 

Date: 17 January 2020 

Court: U.S. Court of Appeals for the Ninth Circuit 

Citation(s): Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020)

Short summary  

A group of young people sued the United States government for failing to prevent climate change, seeking an order requiring the government to develop a plan to phase out domestic fossil fuel emissions. The plaintiffs claimed violations of their substantive due process, equal protection, the Ninth Amendment, and the public trust doctrine. The court found that the plaintiffs established injury-in-fact and causation for Article III standing but that their claim failed for lack of redressability. 

Summary by: Nicole Gasmen and Luke Hancox

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision comes from the Ninth Circuit of the United States Court of Appeals and is therefore binding on all courts in the Circuit and persuasive in other federal courts.   

Key facts 

The plaintiffs were twenty-one young citizens, an environmental organization, and a “representative of future generations.” [1165] They sued the President (later dismissed from the action), the United States, and federal agencies. The complaint accused the government of continuing to “permit, authorize, and subsidize” [1165] fossil fuel use, despite awareness of its risks, leading to various climate-change-related injuries. The plaintiffs’ claims varied from psychological harm and impairment of recreational interests to exacerbated medical conditions and property damage. 

The complaint asserted violations of the plaintiffs’ constitutional rights: 

“(1) the plaintiffs’ substantive rights under the Due Process Clause of the Fifth Amendment; (2) the plaintiffs’ rights under the Fifth Amendment to equal protection of the law; (3) the plaintiffs’ rights under the Ninth Amendment; and (4) the public trust doctrine.” [1165] 

The plaintiffs sought declaratory relief and an injunction ordering the government to implement a plan to “phase out fossil fuel emissions and draw down excess atmospheric [carbon dioxide].” [1165] 

The court noted that the District Court record and this appeal recognized climate change is occurring at a rapid pace. The court stated that rising carbon emissions would wreak havoc on the Earth’s climate if left unchecked, and that the federal government long understood these risks and affirmatively contributed to their worsening. 

The government largely did not contest the factual basis for the plaintiffs’ claims, only that they lacked standing to pursue them. 

Previous instances  

The District Court denied the government’s motion to dismiss. That court stated that the plaintiffs had standing to pursue their claims that the government violated their constitutional rights, including a Fifth Amendment right to a “climate system capable of sustaining human life.” [1165] The District Court also found a separate viable “danger-creation due process claim” [1165] based on the government’s lack of regulation on third-party emissions and a public trust doctrine claim. 

At summary judgment, the District Court dismissed the President as a defendant and dismissed the plaintiffs’ Equal Protection claim in part. That court also dismissed the plaintiffs’ Ninth Amendment claims. The government then sought this interlocutory appeal to resolve the standing issue and other grounds for dismissal. 

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Urgenda Foundation v. the State of the Netherlands 

Date: 20 December 2019 

Court: Supreme Court of the Netherlands 

Citation(s): ECLI:NL:HR:2019:2007 

Short summary  

The Supreme Court of the Netherlands held that the Dutch State was obliged to reduce its greenhouse gas emissions by 25% by the end of 2020, compared to 1990 levels. This obligation stemmed from the Netherlands’ commitments under the European Convention on Human Rights, including Dutch citizens’ rights to life and respect for private and family life. 

Summary by: Clarrisa Burki

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The judgment was handed down by the Supreme Court of the Netherlands, the highest judicial body within that nation. It is binding within the Netherlands and compels the government to act. 

Key facts 

The Urgenda Foundation (“Urgenda”), a Dutch environmental group, brought an action to require the Dutch government to take measures to combat climate change. Urgenda based their action on the right to life and the right to a healthy environment. The European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) requires the State to protect these rights for their residents. Article 2 guarantees the right to life and Article 8 ensures the right to respect for private and family life. The European Court of Human Rights has held that the ECHR places an obligation on a State to act and take the appropriate measures when there is a real and immediate risk to people’s lives or welfare and when the State is aware of this. This obligation equally applies when it comes to wide-reaching environmental risks threatening large groups or the population as a whole even if these threats will only materialise over the long term. 

According to the United Nations Framework Convention on Climate Change (UNFCCC), each country is responsible for its own share of emissions; each state is therefore obliged to reduce greenhouse gas emissions in proportion to its share of the responsibility. 

In this case, the State asserted that it is not for the courts to undertake the considerations required for a decision on the reduction of greenhouse gas emissions, and that doing so would amount to an order to create legislation, violating the separation of powers. 

Previous instances  

In the District Court, Urgenda sought a court order to order the Netherlands to reduce its emission of greenhouse gasses such that, by the end of 2020, emissions would be reduced by 40% compared to 1990 levels. The District Court upheld the plaintiff’s claim in part and ordered the State to reduce emissions by at least 25% compared to 1990 by 2020.  

The District Court’s order was upheld by the Court of Appeal. 

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RAD File No VB9-03573 

Date: 20 November 2019 

Court: Immigration and Refugee Board of Canada, Refugee Appeal Decision 

Citation: [2019] RADD No 2229 

Summary by: Madison Bruno 

Short summary  

The Refugee Protection Division (RPD) rejected a claim for refugee protection because it found an Internal Flight Alternative (IFA), Port Harcourt, within Nigeria. The Appellant claimed that the RPD erred in its IFA test because the alternate location was unsafe and unreasonable. The Refugee Appeal Board dismissed the appeal but accepted evidence regarding effects of climate change in Nigeria. 

Link to original judgement  

Click here to open the case in PDF format

Weight of decision  

The federal Immigration and Refugee Protection Act (IRPA) gives the Immigration and Refugee Board of Canada jurisdiction to hear and decide cases on immigration/refugee matters. Their decisions are persuasive but not binding precedent and are subject to judicial review at the Federal Court. 

Key facts 

Appellant alleged he was attacked by Fulani Herdsmen in 2016, following several altercations over their cattle drinking from his fishponds. He claimed that he was hospitalized for 14 months. Appellant fled Nigeria in 2018, travelled through the U.S., then arrived in Canada to seek refugee protection.  

Canada’s Refugee Protection Division rejected appellant’s initial application for asylum, prompting an appeal to the Refugee Appeal Board. 

Summary of holding 

The Refugee Appeal Board utilized a two-part legal test for assessing whether appellant had a reasonable Internal Flight Alternative (IFA): 

“First, the Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted, and/or no danger of torture, risk to life, or risk of cruel and unusual treatment or punishment in the proposed IFA.” (¶ 51) 

“Second, conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, for the claimant to seek refuge there.” (¶ 52) 

“Once an IFA has been identified, the Appellant is responsible for demonstrating that the IFA is unsafe or unreasonable.” (¶ 53) 

The Appeal Board then gave a summary of the documentary evidence regarding Fulani Herdsmen used by the Refugee Protection Division (RPD) in its original decision: 

“The NDP [National Documentation Package] states that climate change and insecurity in Nigeria’s northern region have triggered a southward migration of Fulani Herdsmen, resulting in conflict between local farmers and the Herdsmen as they search for land to graze their cattle. The conflicts occur primarily in Nigeria’s Middle Belt, including the states of Adamawa, Benue, Kogi, Kwara, Nasarawa, Niger, Plateau, Taraba, and the Federal Capital Territory.” (¶ 55) 

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Cordella et al. v. Italy

Date: 24 January 2019 

Court: European Court of Human Rights, Strasbourg  

Citation: [2019] ECtHR 029 (Application Nos: 54414/13 and 54264/15)

Short summary  

This case held that the European Convention on Human Rights, Articles 8 (Right to respect for private and family life) and 13 (Right to an effective remedy), imposes an obligation on the Italian state to de-pollute areas contaminated by a steel factory.  

Summary by: Yusuf Lahham

Link to original judgement

Click here to open the case in PDF format

Weight of decision  

The European Court of Human Rights (ECtHR) applies the European Convention on Human Rights (ECHR) and all Contracting States are bound by its judgments. As this case originated in an application against the Republic of Italy, the judgment holds the weight of directly applicable constitutional law in Italy. Decisions are also relevant to other States as they are viewed as a ‘living interpretation’ of the ECHR.  

Key facts 

The applicants, over 100 Italian citizens, brought a complaint to the ECtHR on the 29th of July 2013, relying on Articles 2, 8, and 13 of the Convention. The complaint stemmed from the harmful emissions a steel factory was producing, affecting inhabitants of the city of Taranto and its neighbouring municipalities.  

Ilva, a company owned by Riva group, operates the largest steelworks complex in Europe, which is located in Taranto, Italy. The harmful impacts of the complex on the local environment have been noted since 1990, when the Italian Council of Ministers listed certain municipalities around Taranto at “high environmental risk.” Between 1997 and 2017, multiple scientific reports were produced from different departments and investigative authorities, detailing the extent of the impact of the emissions on the local people and environment. Most notably, a 2017 ARPA report confirmed the causal link between industrial emissions and health damage in the areas marked “at risk.”  

In 2003, 2004, and 2006, Ilva agreed to organise measures to reduce the environmental impact of the factory, designating a third party to identify the main source of harmful particle emission and introduce authorised limits for emission levels. Decree no. 155, issued under the Air Quality Directive of 2008/50CE, set the deadline for the limiting of polluting production to December 2012. In 2011, the Ministry of Environment issued an AIA (integrated environmental authorization), allowing the company to continue to produce steel, subject to its adoption of BAT (“best available techniques”) to reduce the impact of polluting emissions on the environment. In 2012, a second AIA was granted, modifying the first and fixing new conditions. From 2012-2016, “salva-Ilva” decree-laws were adopted concerning the activity of Ilva in relation to the “imminent” purchase of the company. This effectively postponed the deadline to execute measures to safeguard the environment until 2023.  

Previous instances 

There were several criminal proceedings brought against the managers of the Ilva company for causing an ecological disaster: the poisoning of food substances, failure to prevent accidents at a place of work, degradation of public goods, and the emission of polluting substances into the atmosphere. Some of these cases resulted in convictions in 2002, 2005, and 2007. Furthermore, the Court of Cassation sentenced the managers of the factory in Taranto for atmospheric pollution and the emission of hazardous particles. It was also noted that the production of the particles at the factory continued, despite the agreements made in 2003 and 2004.  

On 31st of March 2011, the CJEU asserted that Italy had failed to fulfil its obligation under Directive 2008/1/EC of the European Parliament on the prevention and reduction of pollution. It was held that Italy had not adopted necessary measures to ensure industrial plants were being operated in accordance with the regulations provided for in the directive. In 2014, the European Commission called upon the Italian authorities to remedy the pollution issue at the Taranto factory site, noting that the emissions from the steel production process had not decreased and were resulting in serious environmental and health consequences for the local population.  

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Future Generations v. Ministry of the Environment and Others

Date:  5 April 2018 

Court: Supreme Court of Justice of Colombia

Citation(s):  STC4360-2018

Short summary  

25 young plaintiffs sued the Colombian government to stop deforestation in the Amazon rainforest. A 4-3 majority on Colombia’s Supreme Court ruled for the plaintiffs – finding that their and future generations’ fundamental rights were threatened by loss of biodiversity and climate change – and ordered the Colombian government to stop deforestation by 2022, which it failed to do.

Summary by: Saw Aung Aung and David Cremins

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The Supreme Court of Justice is the final arbiter of constitutional questions in Colombia and its ruling is binding on both government and private actors. However, compliance issues following the ruling in Future Generations highlight the limits of the Court’s power..   

Key facts 

Between 2015 and 2016, deforestation in the Amazonas region of Colombia increased by 44%. This poses a risk not just to the region but to the world, as the Amazon acts as the “lungs of the earth” and is critical to global sustainability; deforestation impacts water supplies, degrades soil health, and increases carbon emissions.

This rapid increase in deforestation was in part caused by the end of hostilities between the Colombian government and the Revolutionary Armed Forces of Colombia, which created a power vacuum in rural areas of the country. Small farmers, large ranchers, and corporations alike began clearing rainforest rapidly to make room for agriculture, ranching, and mining, and the state was largely powerless to stop this trend.

Colombia, as a signatory to the 2015 Paris Agreement and other international mechanisms, has obligated itself to reach net zero emissions. However, as is true around the world, limited progress has been made towards these goals.

Dejusticia, a social justice non-profit based in Bogotá, grew concerned about the deforestation and the climate crisis. So, they brought together 25 young people, ranging in age from 7 to 25 years old, as plaintiffs in a tutela action – directly asserting a violation of their individual constitutional rights to life, health, water, food, and a healthy environment – in Colombia’s Constitutional Court system in January 2018.

Previous instances  

The first court to hear this case dismissed the complaint on standing grounds, holding that the plaintiffs’ claim was collective, rather than individual, and therefore not properly pled as a tutela action; the plaintiffs appealed to the Supreme Court of Colombia.

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Leghari v. Federation of Pakistan


Date: 1 January 2018

Court: Lahore High Court, Pakistan

Citation: W.P. No. 25501/2015

Short summary 

The plaintiff sued the Federal Government of Pakistan and Regional Government of Punjab for failure to address climate change, arguing that the government’s failure to implement national climate change policy threatened citizens’ rights to life, a healthy and clean environment, and human dignity. The High Court agreed and mandated certain administrative changes to ensure citizens’ fundamental rights to water, food, and energy.

Summary by: Saw Aung Aung

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision 

This decision holds great weight in Pakistan, as the judgment from the High Court binds the national government to further ensure implementation of national climate change policy and to enforce the fundamental rights of its citizens in the context of climate change.. 

Key facts 

Pakistan is particularly vulnerable to the impacts of climate change, as seen recently from massive damage, death, and displacement caused by flooding. According to articles 9 (right to life) and 14 (right to a healthy and clean environment and to human dignity) of the Pakistani Constitution, citizens can turn to the courts to recognize state obligations to ensure these fundamental rights.

Under the National Climate Change Policy of 2012 (“Policy”) and the 2014-2030 Framework for Implementation of Climate Change Policy (“Framework”), the courts also have the authority to install and remove members of the Climate Change Commission (“CCC”), including relevant experts from the Ministry of Water Resources, Ministry of Climate Change, and Ministry of Inter Provincial Coordination, and to require reports from the CCC on whether citizens’ rights are properly safeguarded in the context of environmental and climate change.

Petitioner Leghari filed this case against the Federal Government of Pakistan and the Regional Government of Punjab, alleging that the impacts of climate change, and a lack of action from the government, violated his rights as a citizen. In particular, Leghari alleged that failure to implement the national Policy and Framework on climate change threatened his livelihood as an agriculturist, given his economic dependency on access to clean water, energy, and food.

Previous instances

Previous cases in Pakistan (Tiwana v. Punjab [PLD 2015 Lahore 522] and Zia v. WAPDA [PLD 1994 SC 693]) established that national and provincial environmental laws should be enforced consistent with international principles of environmental law, including respect for fundamental rights and proper execution of environmental impact assessments.

Summary of holding 

The Court first recognized that climate change in Pakistan has led to heavy flooding and droughts, threatening citizens’ fundamental rights to water and food security, especially the most vulnerable in the country. It then held that the government had not taken sufficient action to implement its climate change Policy or Framework, despite notable progress by the CCC. Nonetheless, the Court dissolved the CCC, and future authority to coordinate implementation of the national Policy and Framework was vested in a Standing Committee on Climate Change, to “act as a link between the Court and the Executive . . . to ensure that the Policy and the Framework continue to be implemented.”

The Court agreed with Leghari that their authority to intervene was connected with the rights to life and human dignity “under articles  9 and 14 of the Constitution,” especially with respect to his right as a citizen to access clean water: “Climate Justice and Water Justice go hand in hand.” Moreover, the Court’s decision referenced “international environmental principles of sustainable development, [the] precautionary principle, environmental impact assessment[s], inter[-] and intra-generational equity[,] and [the] public trust doctrine” among the mechanisms used to justify its ruling.

Potential takeaways for future climate migration litigation

  • Leghari is a relatively successful example of a citizen directly asserting their rights in court against a national government in the context of climate change. The High Court’s willingness to hear such a rights-based claim and respond with a substantive policy change order should be of interest to future litigators bringing national cases related to climate mitigation or adaptation.
  • While the policy changes mandated by the Court may or may not bring Pakistan into compliance with its own climate change Policy or Framework, advocates should note that, in a country already frequently devastated by the impacts of climate change, the High Court asserted a muscular role for itself in coordinating executive and legislative actions, including via the creation of a new Standing Committee to enforce fundamental rights in the context of climate change. In doing so, the Court seemed especially moved by rural citizens’ dependence on clean and consistent water sources, a perennial environmental issue in Pakistan. In mobility-related cases, then, it may be wise to assert claims with reference to environmental hazards already well-recognized in a given jurisdiction.
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AV (Nepal) [2017] NZIPT 801125, 26 

Date: 22 September 2017 

Court: New Zealand Immigration and Protection Tribunal 

Citation(s): [2017] NZIPT 801125, 26 

Short summary 

Appellants, suffering from PTSD, claimed that they could not return to Nepal due to fear induced by the deadly 2015 earthquake. The Tribunal denied them leave to remain as they had not suffered from persecution resulting from actions of the State and did not meet the definition of a refugee under the 1951 Refugee Convention.  

Summary by: Lucas Robinson  

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision 

The New Zealand Immigration and Protection Tribunal (NZPT) is an independent judicial body that was established under § 127 of the Immigration Act 2009. The Tribunal has jurisdiction to hear appeals against immigration and refugee decisions made by State bodies. As appealing to the High Court can only be made on a point of law, the NZPT decisions carry substantial weight in domestic law. 

Key facts 

Appellants, a married Nepalese couple, appealed the decision made by a refugee and protection officer that they were not to be granted refugee status in New Zealand. They argued that following the April 2015 earthquake in Nepal, they had been diagnosed with post-traumatic stress disorder (PTSD) and feared the prospect of returning to Kathmandu. The earthquake rendered their home unhabitable and for a period of time they slept in tents. However, although they partly repaired their home, evidence was offered that they often slept on the veranda due to the fear of aftershocks. Appellants argued that they both felt much safer residing in New Zealand where their son and his family had been granted residence status and had purchased a home. Additionally, the Appellants’ General Practitioner gave evidence indicating that the wife did in fact suffer from PTSD and that both of the Appellants suffered from physical injury on account of the earthquake, which had left them in chronic pain for some time.  

Summary of holding 

The Tribunal determined that the relevant tests were set out in the Immigration Act 2009 under § 194(1)(c). Namely, it must be found that appellants are refugees under the 1951 Refugee Convention, protected persons under the 1984 Convention Against Torture, or protected persons under the 1966 International Covenant on Civil and Political Rights (ICCPR) to receive asylum.  

In regard to the 1951 Refugee Convention, it was necessary for the Appellants to show, as per Article 1A(2), that “owing to a well-founded fear of being persecuted,” they were unable to return to Nepal on account of their “race, religion, nationality, or membership of a particular social or political group”.  The Tribunal followed the view in DS (Iran) [2016] NZIPT 800788, that “being persecuted” required serious harm arising from the sustained or systemic violation of internationally recognised human rights, demonstrative of a failure of state protection. Additionally, a fear of being persecuted is established as well-founded when there isa real, as opposed to a remote or speculative, chance of it occurring (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379). The Appellants acknowledged that they did not fear the Nepalese state itself, but rather the fear of future earthquakes and the prospect of returning to Kathmandu without the support of their children. In light of this, the Tribunal cited AF (Kribati) [2013] NZIPT 800413, a case that set out whilst natural disasters could involve human rights issues, the definition set out in the 1951 Refugee Convention still had to be satisfied.  

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Beauboeuf v. Canada

Date: 21 October 2016 

Court: Immigration and Refugee Board of Canada (Immigration Appeal Division) 

Citation(s): 2016 CarswellNat 8691  

Short summary  

A 71-year-old Haitian applicant successfully appealed a refusal letter denying her permanent residency in Canada. While she was originally denied a visa because of the potential for her health conditions to cause excessive demand on health or social services in Canada, she demonstrated compelling humanitarian and compassionate grounds that warranted special relief. A major element of her humanitarian and compassionate claim was the devastation ensuing from the 2010 earthquake in Haiti. 

Summary by: Erin Levitsky 

Link to original judgement  

Click here to open the case in PDF format

Weight of decision  

This decision is not binding on Canadian courts because it comes from a tribunal. It is persuasive, however, and the fact that it is an appeal decision gives it greater weight. 

Key facts 

The appellant, Yamiley Beauboeuf, and her husband were both born in Haiti and are both citizens of Canada. They have two sons who are also Canadian. The family lives in Ottawa.  

Following the devastating earthquake in Haiti in 2010, Beauboeuf’s mother, Rose Marie Yolaine Napoléon came to visit her family in Canada and never left. Beauboeuf and her husband co-sponsored Napoléon for permanent residence (PR) as a member of the family.

Previous instances 

In October 2012, Napoléon received a procedural fairness letter containing the opinion of a medical officer who determined that her medical condition—diabetic illness complicated by chronic kidney disease—might cause excessive demand on health or social services in Canada. Napoléon provided additional submissions and documents but Citizenship and Immigration Canada (CIC) ultimately issued a refusal letter in April 13 refusing her PR citing the same concern, pursuant to § 38(1) of the Immigration and Refugee Protection Act (IRPA). Beauboeuf appealed the decision. 

Summary of holding 

Rather than contest the legal validity of the refusal letter, the appellant argued there were “sufficient humanitarian and compassionate considerations, taking into account the best interests of the children directly affected by the decision and the other relevant circumstances of her case” (¶ 3) to justify special relief pursuant to ¶ 67(1)(c) of the IRPA. The Minister argued the threshold for relief based on humanitarian and compassionate grounds was not met. 

The Immigration Appeal Division (IAD) allowed the appeal, holding that while the refusal letter was legally valid, the humanitarian and compassionate considerations put forward were sufficient to warrant special relief. 

The IAD considered several factors to determine whether humanitarian and compassionate considerations were sufficient, including: 

“(i) the relationship of the sponsor to the applicant and the strength of that relationship; (ii) the reasons for the sponsorship; (iii) the overall situation of both the sponsor and the applicant; (iv) the family support in Canada; (v) the existence of dependency as between the applicant and the sponsor; (vi) the best interests of any children directly affected by the decision; and (vii) the objectives of the IRPA” (¶ 5). 

The IAD considered the fact that the main reason Beauboeuf sponsored her mother was to keep her alive. It held that being deported would be akin to a death sentence, as dialysis, the medical treatment she required, was not available in Haiti.  

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AC (Tuvalu)

Date: 04 June 2014

Court: New Zealand: Immigration Protection Tribunal

Citation: AC (Tuvalu) [2014] NZIPT 800517-520

Short summary  

A family appealed their immigration cases to New Zealand’s Immigration and Protection Tribunal, claiming their rights to life and protection would be violated if returned to Tuvalu because of climate change impacts. The Tribunal dismissed their claims, finding that they could not meet their evidentiary burden in qualifying as protected persons, nor in demonstrating that the government of Tuvalu failed to meet its duty to address the known effects of climate change on its populace.

Summary by: Keri Pflieger 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The Immigration and Protection Tribunal is an expert forum administered by the New Zealand Ministry of Justice. It primarily assesses immigration and protection claims under New Zealand’s Immigration Act 2009, which codifies the Refugee Convention (§ 129), Convention Against Torture (§ 130), and the ICCPR (§ 131). The Immigration and Protection Tribunal’s decisions hold significant weight in New Zealand. Decisions may only be appealed to the domestic High Court on issues of law. 

Key facts

The Appellants were a Tuvaluan family (husband, wife, and two children) living in New Zealand who appealed the denial of their immigration cases and sought protected person status under New Zealand’s Immigration Act 2009.

The husband and wife each noticed the effects of climate change in Tuvalu, including increased land inundation, sea level rise, difficulties growing food, coastal erosion, and droughts. Prior to their departure from Tuvalu, they lost two late-term pregnancies, one of which they attributed to the quality of medical care in Tuvalu.

The husband and wife left Tuvalu for New Zealand in 2007, after the husband’s family home was demolished and the wife’s workplace shut down from insufficient funding.

The husband expressed fear for his family’s safety if returned to Tuvalu, due to minimal employment opportunities and lack of access to clean drinking water free from contamination. In addition to sharing her husband’s concerns, the wife also feared the quality of medical care facilities and availability of medicine access for her children, sea level rise’s negative effects on vegetation growth, and not having pathways to land ownership.

Previous instances

In November 2012, Appellants applied for refugee and/or protected person status. However, their claims were dismissed on 17 March 2013 by the Refugee Status Branch. Appellants appealed this dismissal under § 194(1)(c) of the Immigration Act 2009 with the Immigration and Protection Tribunal on 03 April 2014. This case, AC (Tuvalu), is the Tribunal’s assessment of that appeal.

AC (Tuvalu) is a joint appeal issued contemporaneously with AD (Tuvalu) [2014] NZIPT 501370-371. Under that appeal, appellants challenged deportation on humanitarian grounds under § 194(5) & (6), and § 196(6) & (7) of the Immigration Act 2009 to prevent separation of the husband’s family living in New Zealand. Appellants succeeded under that appeal.

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Washington Environmental Council v. Bellon 

Date: 17 October 2013 

Court: United States Ninth Circuit Court of Appeals 

Citation(s): Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1141-46 (9th Cir. 2013) 

Short summary  

Washington state residents and non-profits sued the Washington State Department of Ecology over its failure to regulate greenhouse gas emissions in accordance with the Clean Air Act. The Court of Appeals vacated the District Court below and held that Plaintiffs failed to show standing under Article III of the U.S. Constitution by failing to establish causation for and the redressability of their injuries. 

Summary by: David Cremins

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The ruling by the Circuit Court of Appeals holds precedential authority in the Ninth District (Washington, Oregon, California, Nevada, Idaho, Montana, Hawaii, and Alaska) and persuasive authority in other U.S. Circuits.  

Key facts 

Washington State has five oil refineries subject to regulation under § 202(a) of the Clean Air Act (CAA) and is required by the Environmental Protection Agency (EPA) to develop a State Implementation Plan (SIP) to define greenhouse gas (GHG) emission limits (known as National Ambient Air Quality Standards [NAAQS]) for these refineries, which accounted for about 6% of Washington’s state emissions in 2008.  

Under Article III of the United States Constitution, federal courts have the power to hear “cases and controversies” between parties with an adversarial interest in a judicial ruling. Standing doctrine has been most notably developed in the context of environmental suits by the cases described below. 

Previous instances  

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), established that environmental plaintiffs must establish 1) a concrete, particular injury they have suffered or will imminently suffer that 2) is causally related to the (in)action of the actor they are suing and 3) that a court order could sufficiently redress their harm.  

Massachusetts v. EPA held that GHGs are air pollutants subject to regulation under the CAA, a major win for environmental litigation. However, it also put in place a heightened standard for standing for non-state actors seeking to enforce EPA regulations, e.g., by promulgation of specific NAAQS in states’ SIPs.  

Summary of holding 

Plaintiffs’ claim (that Washington’s SIP failed to establish NAAQS that limited GHG emissions at key refineries) is not addressable by courts because they lack Article III standing. Non-profit environmental groups and individuals plausibly sustain economic, recreational, and health injuries due to CO2 pollution and attendant climate change. However, the chain of causation between these refineries’ GHG emissions and global climate change is too weak and attenuated to satisfy the second prong of the standing test. Further, any order to regulate these refineries would have a negligible effect on redressing plaintiffs’ localized injuries incurred because of global temperature rise. This is distinguishable from Massachusetts, wherein Massachusetts was afforded relaxed standing requirements due to its status as a quasi-sovereign, thereby satisfying Lujan. This “special solicitude” does not extend to these non-state litigants, and even if it did their claims would still be tenuous. 

Potential takeaways for future climate migration litigation 

  • This case demonstrates the difficulty of achieving standing before United States federal courts in cases concerning specific harms from global climate change. It is one of many cases that could demonstrate this proposition, but it is notable because it involves a liberal-leaning court refusing to enjoin a liberal state from enacting federally mandated regulation of its fossil fuel emissions.  
  • Such standing issues may not be as prevalent in migration cases where an injury is already established, and a government agency’s action can provide a clear remedy, such as resettlement.  
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