Earth Refuge – Page 4 – Earth Refuge Legal

January 21, 2004July 4, 2022

Alaska Department of Environmental Conservation v. EPA

Date: 21 January 2004

Court: Supreme Court of the United States

Citation(s): Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461 (2004)

Short summary

Alaska’s Department of Environmental Conservation determined what pollution-restricting technology should be implemented for a mine expansion, per requirements of the Clean Air Act. The federal Environmental Protection Agency intervened, disagreeing with Alaska’s determination of which technology to utilize. The Supreme Court affirmed the Ninth Circuit Court of Appeals’ ruling that the Environmental Protection Agency properly overruled Alaska’s initial determination.

Summary by: Gazal Gupta

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

Under the Clean Air Act (CAA), state agencies must identify the best strategy to prevent air quality from deteriorating in regions that comply with national air quality standards. In part, they must ensure that polluting industries utilise the “best available control technology” to restrict pollution whenever they construct new facilities. Teck Cominco Alaska, a mining firm, applied for a permit to develop a new generator at one of its mines in 1998. The permit was issued by the Alaska Department of Environmental Conservation (ADEC), and it required Cominco to use “Low NOx” technology in all its generators, not just the new one. However, the Environmental Protection Agency (EPA) intervened, claiming that a more advanced technique was available and should be utilized.

Previous instances

The EPA’s decision was challenged by ADEC in the Ninth Circuit Court of Appeals, arguing that the EPA lacked the authority to interfere with the state agency’s decision under the CAA. The Ninth Circuit ruled in favour of the EPA.

Summary of holding

On appeal, the Supreme Court was asked to settle whether if the EPA, under the CAA, has the authority to overrule a state agency’s decision that a company is using the “best available controlling technology” to prevent pollution.

§ 165(a)(4) of the CAA stipulates that no large air pollutant-emitting plant can be built unless it is fitted with the best available control technology. Furthermore, when EPA finds that a state is not complying with a CAA requirement governing the construction of a pollutant source, it has the authority to issue an order prohibiting construction, impose an administrative penalty, or file a civil action for injunctive relief under § 113(a)(5) of the CAA. § 167 of the CAA authorizes EPA to take any necessary action, including issuing an order or pursuing injunctive relief, to prevent the construction of a significant pollutant-emitting plant that does not comply with the CAA’s pollutant criteria.

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August 13, 2002May 7, 2023

Ontunez Tursios v. Ashcroft

Date: 13 August 2002

Court: United States Court of Appeals, Fifth Circuit

Citation: 303 F.3d 341 (5th Cir. 2002)

Short summary

A Honduran man, fleeing targeted violence stemming from a land dispute and exacerbated by hurricane damage, was denied refugee status in the United States for failing to establish a nexus between his persecution and the grounds for asylum.

Summary by: David Cremins

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision

This decision is a binding part of the asylum case law developed in the Fifth Circuit (Louisiana, Mississippi, and Texas) and may be persuasive in other jurisdictions in the United States.

Key facts

The applicant for asylum, Mr. Ontunez-Tursios, moved to the town of La Ceiba in 1994 and joined other campesinos in cultivating a piece of coastal land known as Las Delicias. In 1996, a group of businessmen, wishing to sell Las Delicias to Korean investors, challenged the campesinos possession of the land, unleashing a campaign of violence and intimidation against them, during which at least two campesinos were assassinated. Mr. Ontunez-Tursios found out he was on a hit list and, after being directly threatened several times, fled to the United States, where he applied for asylum in October 1999.

During this violent dispute over land possession, in October 1998 Hurricane Mitch devastated Honduras, including Las Delicias. The storm ruined Mr. Ontunez-Tursios’ land as well as key documentary evidence against the businessmen pursuing him and the other campesinos.

Previous instances

The immigration judge who first heard Mr. Ontunez-Tursios’ case denied him refugee status because his claim did not arise on account of the enumerated grounds for persecution. The Board of Immigration Appeals (BIA) agreed that he failed to show a nexus between his persecution and either his race, religion, nationality, membership in a particular social group, or political opinion, leading to this appeal before the Fifth Circuit.

Summary of holding

In a 2-1 panel decision, the Fifth Circuit affirmed the rulings below, finding that the BIA correctly dismissed Mr. Ontunez-Tursios’ contention that his leadership in the land conflict did not constitute a political opinion or membership in the particular social group of “land rights leaders”. Stripping away the context of land struggle and the impacts of Hurricane Mitch, the court held that his “evidence showed no motive of the persecutors other than a private, economic one.” The court further found that Mr. Ontunez-Tursios did not qualify for withholding of removal because he was at no risk of torture in his home country, and that the Honduran government had not implicitly or explicitly acquiesced to his persecution or torture.

Potential takeaways for future climate migration litigation

Increasingly, claims for asylum and other humanitarian protections will have to be considered in the context of climate change. The devastation wrought by Hurricane Mitch in Honduras provides an early example of how an already difficult situation – a violent battle over valuable land between the upper and lower classes in a society – is made worse following disasters. Advocates for climate migrants should note how fights over land and other forms of social violence intermix with a changing climate, including through slow-onset shifts in conditions.

As in other cases in jurisdictions around the world, the harm from the climate disaster itself – destruction of land and evidentiary documents – had no bearing on Mr. Ontunez-Tursios’ unsuccessful claim for asylum, even as it exacerbated his vulnerability in his home country.

Under United States law, the nexus prong – that persecution must be “on account of” one of the five grounds first laid out in the 1951 Refugee Convention – is often narrowly construed, such that even clear instances of persecutory violence, whether or not connected to climate change, do not qualify even sympathetic applicants such as Mr. Ontunez-Tursios for refugee status.

May 16, 2002August 27, 2023

Montenegro v. Ashcroft

Date: 16 May 2002

Court: United States Court of Appeals, Third Circuit

Citation: 68 Fed. Appx. 290

Short summary

A Guatemalan man petitioned for asylum in the United States after suffering persecution attributed to his labour union activity. An immigration judge found his testimony credible and granted the man and his family asylum, a decision ultimately upheld by a federal appeals court.

Summary by: Elisa D’Amico

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision

This decision is a binding part of the asylum case law developed in the Third Circuit (Delaware, New Jersey, Pennsylvania). Courts outside of the Third Circuit – including immigration and other federal courts – may find the case’s reasoning persuasive when evaluating similar asylum claims.

Key facts

Werner Montenegro, born in Guatemala on in 1951 and began working as an agricultural internal auditor for a semi-public wheat growers association in 1982. During this period, Montenegro and others organized a labor union, which faced opposition from management led by Carlos Pac. He claimed to have faced assaults and threats in Guatemala due to his involvement in labor union activities, driven by economic scarcity in his sector.

Previous instances

Immigration Judge Alberto Riefkohl found Montenegro’s testimony credible and granted him, along with his wife and son, asylum, recognizing their need for protection from “a group that the government is unwilling or unable to control.” However, the Board of Immigration Appeals (BIA) overturned the Judge’s decision, contending that the harm the family suffered did not meet the threshold for persecution.

Summary of holding

On Montenegro’s appeal of the BIA decision, a panel of judges on the Third Circuit conducted a thorough examination of Montenegro’s testimony and supporting evidence. Based on evidence of past persecution linked to Montenegro’s labor union involvement, the court concluded that his claim was well-founded and merited protection under asylum laws. The case was remanded back to the Immigration Judge, directing him to grant asylum to Montenegro and his family.

The Third Circuit found that the BIA’s decision lacked proper support from the record, and its characterization of the evidence as “vague” was unjustified. For example, the court highlighted the attack on Mrs. Montenegro, Werner’s wife, which involved threats and physical violence in the presence of their young daughter. The court found this incident to be especially concerning and constituting persecution under the law.

Furthermore, the court explained that once an applicant demonstrates past persecution, as Werner Montenegro did, there is a presumption of a well-founded fear of persecution. The BIA failed to rebut this presumption with evidence showing a fundamental change in circumstances or the possibility of avoiding persecution through relocation. Thus, Montenegro’s eligibility for asylum was firmly established.

Therefore, the court vacated the BIA’s order and remanded the case for the Immigration Judge to grant the application for asylum. The court’s decision ensured that the Montenegro family received the protection they sought, recognizing the persecution they endured in their home country related to Montenegro’s sectoral efforts.

Potential takeaways for future climate migration litigation

Montenegro v. Ashcroft may set precedent for asylum claims based on climate-induced poverty and violence. It recognizes the link between economic migration and persecution, allowing individuals to be granted asylum based on sector- or work-related persecution. This case highlights the significance of considering economic aspects in asylum cases, especially in regions facing resource scarcity and escalating tensions attributable to climate change.

As climate change worsens, placing increased pressure on the agricultural sector, this case may gain greater significance for individuals seeking asylum based on persecution associated with their sectoral involvement. By recognizing the impending stress on agricultural sector workers, the case sets a vital standard for courts to consider when evaluating the challenges faced by those displaced within this sector. For example, agricultural workers may confront heightened violence and persecution as a result of escalating resource competition driven by climate change. Challenges also extend to women engaged in informal agricultural work, who find themselves uniquely susceptible to exploitation and harassment amid climate-related internal displacement. Moreover, as climate change renders certain work and livelihoods unmaintainable, climate-afflicted migrants often find themselves moving as economic migrants, seeking alternative opportunities due to the adverse effects of climate change on their traditional occupations.

Advocates should also take note of how small-scale and Indigenous farmers face heightened persecution in the context of climate change, leveraging this and similar cases to advocate for more comprehensive asylum frameworks which recognize the nuanced ways environmental degradation, economic precarity, and pre-existing social vulnerabilities contribute to persecution.