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Native Village of Kivalina v. ExxonMobil Corp.

Date: 12 September 2012

Court: US Court of Appeals, Ninth Circuit

Citation: 696 F.3d 849

Short summary

The Village of Kivalina, a self-governing, federally recognized tribe of Inupiat Native Alaskans, together with the City of Kivalina, brought action against twenty-four oil, energy, and utility companies for federal common law nuisance, based on emission of greenhouse gases which contributed to global warming, causing the erosion of arctic sea ice and the displacement of the inhabitants. Defendants filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), contending that Plaintiff’s claims were non-justiciable political questions and that Plaintiffs lacked Article III standing. The district court granted the motion to dismiss, the Ninth Circuit affirmed dismissal and the Supreme Court denied certiorari.

Summary by: Jane Kundl

Link to original judgement

Click here to open the case in PDF format

Weight of decision

Binding on the Ninth Circuit in the United States, persuasive authority for other circuits and state courts.

Key facts

Kivalina is a small city located on the tip of a six-mile barrier reef on the northwest coast of Alaska, approximately 70 miles north of the Arctic Circle. The Village of Kivalina is a federally-recognized tribe of Inupiat Native Alaskans who live in the municipality. Of 400 residents, 97 percent were indigenous Alaskans. Sea ice that forms a coastline in the fall, winter, and spring protected the land from storms and erosion. But as the sea ice became thinner, formed later, and broke up earlier, erosion and damage to property from sea storms has increased, threatening the entire city and requiring relocation of inhabitants.

Kivalina’s claim was based on greenhouse gas emissions leading to global warming which in turn caused the reduction in sea ice. They argued that the defendants, 24 oil, gas, and utility companies, (the “Energy Producers”) contributed substantially to global warming and thus were responsible for their injuries. They brought a claim under federal common law nuisance, alleging that the production of greenhouse gas emissions constitutes “a substantial and unreasonable interference with public rights, including the rights to use and enjoy public and private property in Kivalina.” (p. 854). State law claims of concert of action and conspiracy to mislead were brought as well. Because the federal law claim was dismissed, the merits of the state law claims were not addressed.

Previous instances

The lower court, the US District Court of Northern California, Oakland Division, granted defendants’ motion to dismiss on two grounds:

  • First, that the issue of greenhouse gases causing global warming was an inherently non-justiciable political question, because the court would have to make determinations regarding energy and environmental policy without guidance from the political branches.
  • Second, that Kivalina lacked Article III standing as they presented no facts showing the injuries were “fairly traceable” to the actions of the Energy Producers. Plaintiffs could not establish the “substantial likelihood” or “seed” causation standards. The court also concluded that Kivalina’s injury was too geographically remote from the source of harm to infer causation.

Plaintiffs appealed and the Ninth Circuit court upheld the motion. Plaintiffs filed a petition for certiorari with the Supreme Court which was denied.

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AL v. Austria, Appl. No. 7788/11, Council of Europe: European Court of Human Rights, 10 May 2012

Date of judgement: 10 May 2012

Court: European Court of Human Rights

Citation(s): A.L. v. Austria, Appl. No. 7788/11, Council of Europe: European Court of Human Rights, 10 May 2012

Short summary 

The European Court of Human Rights (ECtHR) reiterated the obligation of Contracting States to protect individuals from deportation which would place them at risk of treatment contrary to Art. 3 of the European Convention on Human Rights (prohibition of torture or to inhuman or degrading treatment or punishment), noting that Contracting States retained the right to control the entry and expulsion of aliens and that there was no obligation to grant political asylum. The ECtHR stressed that to have an indication as to whether an expulsion would violate Art. 3, from now on, an assessment of the situation in the country would have to be carried out, as the historical situation would offer little more than some help towards understanding the present conditions.

Summary by: Yusuf Lahham

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 3 of the European Convention on Human Rights (ECHR). 

Key facts

A Togolese national (“the applicant”) brought a case against the Republic of Austria seeking to overturn the decisions of the Federal Asylum Office and the Asylum Court in denying him asylum claim and ordering his return to Togo. As a member of the prominent opposition political party, Union des Forces de Changement (UFC), the applicant alleged that upon his return, he would face a risk of being subjected to treatment contrary to Art. 3. 

In addition to this, he claimed that he had been threatened by soldiers in Togo during protests organised in a camp for flood victims due the unequal distribution of relief. The applicant further claimed that another Togolese national (“M.A”) had been granted asylum, relying on very similar evidence to that which had been put forward in his application. He argued that on the basis of M.A’s application result, he too should be granted asylum.

Previous instances 

On 6 July 2009, the applicant’s request for asylum and subsidiary protection was denied by the Federal Asylum Office on the basis that his submission of fear and persecution was not credible and appeared to be a fabrication around what had really happened. The Office noted that parliamentary elections had taken place in 2007, with the UFC winning 27 seats, and that although Togo could not be considered a representative democracy, opposition parties were generally free to act. The Office went on to conclude that whilst the applicant had been truthful regarding his account of the flood and the tensions between soldiers within the flood victim camp, the alleged threats and the applicant’s subsequent fear was contradictory to the applicant’s statements. 

In light of the above, the Office rejected the application for asylum and subsidiary protection on the grounds that the persecution awaiting the applicant in Togo was nothing more than speculation on his part, and that there would be no risk of persecution as recognised under Art. 1(A)(2) of the 1951 United Nations Convention Relating to the Status of Refugees. 

On 29th April 2010, the Asylum Court held a hearing to address the applicant’s appeal, which was based upon the following grounds: that he was unaware of the possibility of submitting more than three pieces of evidence, he had issues understanding the interpreter and as such had not given a full account of police violence towards him at the camp, that members of the UFC were still subject to persecution notwithstanding the 2007 parliamentary elections, and that M.A, another organiser of the demonstrations had been granted asylum. The Court held that the applicant’s statements were contradictory and not due to any translation errors. It was also found that the evidence put forward appeared to be fabricated and that no actual violence towards his person had occurred at the camp. The court ordered his expulsion to Togo, and dismissed his claim. 

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Kolyadenko and Others v. Russia

Date: 28 February 2012 

Court: European Court of Human Rights, Strasbourg  

Citation: [2012] ECtHR 338 (Application No. 17423/05)

Short summary  

Six Russian applicants brought a case before the European Court of Human Rights because their government failed to protect their property and possessions from a dangerous flood. The Court held that Russia violated these applicants’ rights under the European Convention on Human Rights by failing to take preventative measures and warn them of the risk of flooding.  

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 Russian Federation, a then Contracting State to the ECHR, the judgment had the weight of directly applicable constitutional law in Russia. ECtHR decisions are also relevant to other States as they are viewed as a ‘living interpretation’ of the ECHR.  

Key facts 

The applicants, six Russian nationals, brought complaints to the ECtHR between the 21st of April and the 2nd of September 2005, relying on Articles 2, 8, and 13 of the ECHR and Article 1 of Protocol 1. The applicants live near the city of Vladivostok, in an area near the Pionerskaya river and water reservoir, which was heavily affected by a flash flood in August 2001. The applicants alleged that Russian authorities were responsible for the flood and that there had been inadequate judicial response afterwards.    

Vladivostok is located on the southeast coast of Russia, giving it a monsoon-influenced continental climate with humid summers. The month of August is often the rainiest and is marked by typhoons, and it is widely known that the floodplain of the Pionerskaya river is subject to periodic flooding during heavy rains. Between the 7th of June 1999 and the 27th of July 2001, various different authorities in charge of the reservoir and of the region highlighted the fact that the river channel was blocked and needed to be emptied to ensure that no dangerous flooding would occur. However, despite the various different warnings and orders to act, it is unclear whether any significant measures were actually taken.     

On the 7th of August 2001, a heavy rainstorm affected the area. It is estimated that the rain that fell was the equivalent of a full month’s rainfall. By 12 PM, the reservoir was releasing water at a rate of 167 cubic metres per second. Due to the sudden release of water from the reservoir, a nearby area was immediately flooded, engulfing the applicants’ homes. There was no local emergency warning in place and the water rose quickly to a level of 1.50 metres. All 6 applicants suffered damages to their properties and their possessions.      

Previous instances  

A criminal investigation was opened on the 9th of August 2001, and the director of the State-owned company which regulated the reservoir (the Water Company) had criminal proceedings brought against him. However, in January 2003, the criminal proceedings were discontinued. It was contended that the evacuation of water from the reservoir was appropriate given how much rain had fallen on that day, and that such an evacuation was necessary to mitigate the risk of the dam breaking and claiming many lives. An expert report, concluded in January 2003, found that the main reason for the flood was to the blocked channel of the Pionerskaya river, which was littered with waste and overgrown trees and bushes. Consequently, the investigative authorities ordered criminal proceedings to be brought against officials in Vladivostok. Proceedings were brought against officials on the grounds that they had given permission for housing construction in a water protected zone by the river. However, in July 2004, these proceedings were also discontinued for lack of evidence. The civil proceedings the applicants brought were also dismissed in 2004, leaving them with minimal compensation for their losses.  

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American Electric Power Co. v. Connecticut 

Date: 20 June 2011 

Court: United States Supreme Court 

Citation(s): Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011) 

Short summary  

Individuals and groups sued electric companies emitting large amounts of carbon dioxide on federal common law grounds. The Supreme court unanimously ruled that, under the Clean Air Act, the Environmental Protection Agency has the exclusive authority to regulate greenhouse gas emissions, displacing any claims against polluters that seek direct judicial regulation.  

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 

Several non-profit groups and states claimed violations of federal common law against five private energy corporations emitting significant greenhouse gases (GHGs) (650 million annual tonnes as a group). Plaintiffs argued that significant contributions to global warming constituted interstate nuisance and allowed them to seek a court order limiting GHG emissions from Defendant’s plants. Defendants responded that, under the Clean Air Act (CAA), the Environmental Protection Agency (EPA) has exclusive authority to regulate GHGs.  

Previous instances  

Since Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), there has been no general federal common law recognized by courts in the United States. 

In Massachusetts v. EPA, carbon dioxide and other GHGs were held to fall within the scope of the CAA for regulation by EPA, and states were granted standing to sue for harms incurred by climate change.  

The Second Circuit Court of Appeals reversed the District Court which first heard this case and ruled that petitioners had standing and stated administrable nuisance claims not pre-empted by the grant of regulatory authority to the EPA under the CAA. 

Summary of holding 

On appeal, the Supreme Court affirmed the Second Circuit on petitioner’s standing but unanimously reversed on the administrability of their claims, holding that § 202(a) of the CAA displaced federal common law by granting the EPA the sole power to regulate GHGs. 

Potential takeaways for future climate migration litigation 

  • Creative legal strategies invoking older traditions from federal common law in the United States are unlikely to succeed, especially when a certain field of regulation or enforcement has been occupied by an agency such as the EPA. Harms incurred by climate change should be litigated primarily on statutory grounds in the United States. 
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Xákmok Kásek Indigenous Community v. Paraguay

Date: 24 August 2010

Court: Inter-American Court of Human Rights 

Citation: IACtHR, Xákmok Kásek Indigenous Community v. Paraguay, 24 August 2010, Series C, No. 214 (IACtHR 2010) 

Short summary  

The Xákmok Kásek Indigenous Community lodged a petition against the State of Paraguay before the Inter-American Court of Human Rights, alleging failure to enforce their right to property, especially because of the creation of a private protected nature reserve on their ancestral lands without consultation. The Inter-American Court on Human Rights found that the lack of access to nature implied not only the breach of those people’s human rights, but also constituted discrimination.

Summary by: Lorenza Contin 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision

The jurisprudence of the Inter-American Court on Human Rights at the nexus between Indigenous people, environment and right to life was already consolidated at the time, and its rulings are presumptively enforceable on the states which appear before it, including Paraguay.

Key facts

Historically, the economy of Indigenous communities in Paraguay was based on hunting, gathering, and fishing, and thus they used to roam a very extensive area of the Chaco region to follow the seasonal patterns of nature. During the process of colonisation of the Chaco, their ancestral lands were gradually privatised, and they were forced into a process of sedentarisation, settling often around new ranches. The Xákmok Kásek Community is formed by members of different peoples, who traditionally inhabited and roamed the area then occupied by the Salazar Ranch in the mid-twentieth century. However, they gradually faced critical restrictions to their customary activities due to the privatisation of those lands.

On 31 January 2008, Paraguay declared a big portion of the Salazar Ranch a private wildlife reserve for five years. Around 4,175 hectares of the reserve are included in the 10,700 hectares claimed by the Community since 1990. Nevertheless, the Community was not informed nor consulted. Paraguayan Law No. 352/94, regulating protected rural areas, establishes that private nature reserves cannot be expropriated while the declaration is in force. It also enshrines a prohibition to hunt, fish, and gather, enforced through armed park guards able to make arrests. Therefore, because of the creation of the reserve, the Xákmok Kásek Community had to leave and move to a small and remote land, “25 de Febrero.”

Because of this process of displacement, the religion and culture of the Community – male and female initiation rites, burial methods, shamanism, and more – have “been almost entirely lost” (¶ 178). Since their departure from the Ranch, the State has supplied scarce quantities of water during some time periods or no water at all during others, and in 25 de Febrero there is no water source. In addition, food was not delivered regularly and, when it was, the quantity was scarce, and it was critically deficient in nutrients. Access to health-care services was extremely difficult – the nearest clinic, operating “deficiently, (¶ 203) being 75 km from 25 de Febrero. “For years the children did not receive general medical care or vaccinations,” (¶ 205) resulting in a high mortality rate among children, and they had to receive their education in the open air.

Previous instances

On 28 December 1990, the Community’s leaders filed an administrative action before the Paraguayan Rural Welfare Institute to reclaim their traditional lands under the provisions of Law No. 904/81, also known as the “Indigenous Communities Statute.”

As the competent administrative bodies did not respond to the administrative action, the Community’s representatives went to the Congress of the Republic on 23 June 1999 to demand the expropriation of their ancestral lands. On 16 November 2000, the Paraguayan Senate rejected their request.

Thus, on 15 May 2001, the Community lodged the petition at stake against the State of Paraguay before the Inter-American Commission on Human Rights. On 2 July 2009, the Commission, alleging that Paraguay had not ensured the traditional property rights of the Community and that this had compromised the Community’s integrity and living conditions, asked the Court to declare the State responsible for the violation of Articles 3 (Right to Juridical Personality), 4 (Right to Life), 8(1) (Right to Judicial Guarantees), 19 (Rights of the Child), 21 (Right to Property), and 25 (Right to Judicial Protection) of the American Convention on Human Rights. The Commission asked the Court to order the State to take certain steps as reparation.

On 31 July 2008, the Community filed an action of unconstitutionality before the Supreme Court of Justice against the abovementioned nature reserve declaration, enacted by the State in January 2008. The Prosecutor requested the suspension of the time limit for responding to the action, which remained suspended until the Inter-American Court on Human Rights’ judgment.

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Refugee Review Tribunal of Australia 1168 

Date: 10 December 2009  

Court: Refugee Review Tribunal of Australia

Citation(s): 0907346 [2009] RRTA 1168

Short summary 

Australia does not have an obligation to accept climate migrants with no fear of specific persecution in their home country as refugees under its domestic adoption of the Refugee Convention. 

Summary by: Lucas Robinson  

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision 

This decision of the Refugee Review Tribunal of Australia bears moderate weight in immigration cases in the Commonwealth of Australia. 

Key facts 

The applicant was a citizen of Kiribati who arrived in Australia in 2007 and applied for a Protection visa under §65 of the Migration Act 1958 in May 2009. The application was denied by a delegate of the Minister for Immigration and Citizenship in August 2009. 

The applicant claimed that the environmental and economic changes in Kiribati caused by rising sea levels made it impossible for him to earn a living there. In his application, he claimed that some of the islands in Kiribati had already disappeared, and saltwater was springing up through the ground and spoiling the drinking well water, as well as devastating food crops. The applicant’s health had been directly impacted because of the loss of food crops on Kiribati.  

The applicant submitted that these impacts on him constituted persecution that should trigger protections under the 1951 Refugee Convention and the Migration Act 1958.  

Previous instances

The application for review by the RRTA was sought after the decision made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicant a Protection Visa under §65 of the Migration Act 1958. 

Summary of holding 

The RRTA affirmed the Minister’s decision not to grant the applicant a Protection Visa, finding that in the absence of a discriminatory motivation, Australia’s protection obligations were not triggered. The Tribunal held found that the continued production of carbon emissions that cause climate change is not sufficient to constitute persecution under the Refugee Convention as there was no evidence that the persecution the applicant was fearing was occurring because of his membership to any particular group (or any other protected ground for refugee status). People affected by climate change were not recognized as a cognizable group of people in need of protection. Because the applicant was not part of a particular group, he did not fit the convention definition of a refugee. 

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In re Katrina Canal Breaches Litigation 

Date: 18 November 2009

Court: United States District Court, Eastern District of Louisiana

Citation: 647 F. Supp. 2d 644

Short summary  

Hundreds of thousands of homes were lost in Hurricane Katrina and most homeowners’ insurance policies excluded them from compensation. This led many victims of Katrina to sue the United States government under the Federal Tort Claims Act (FTCA), alleging the U.S. Army Corps of Engineers (Corps) failed to properly maintain the Mississippi River Gulf Outlet, leading to the breach of one of New Orleans’ levees. The District Court held the U.S. was not immune from such a suit and held the Corps liable to some of the plaintiffs. This judgment was later reversed by the Fifth Circuit Court of Appeal, on the grounds that the U.S. has sovereign immunity under the FTCA from such claims. 

Summary by: David Cremins

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The ruling by the Eastern District of Louisiana District Court, insofar as its logic was affirmed by the Court of Appeals, holds precedential authority in the Fifth District (Texas, Louisiana, Mississippi) and persuasive authority in other U.S. Circuits (see, e.g., favourable analysis in the Northern and Central Districts of Illinois). However, this ruling has subsequently been read narrowly by the same Eastern District court (holding there must be “ample record evidence” the government neglected its duty to maintain waterways implicated in flooding).  

Key facts 

Under the Federal Tort Claims Act (FTCA; 28 USC §171), the U.S. government is immune from liability if its (in)action can be classified as a discretionary function (i.e., a policy decision left to an agency via legislation) rather than a specifically delegated ministerial duty not executed with due care.  

Under the Flood Control Act (FCA; 33 USC §702c), the U.S. government is immune from liability for damage stemming from its flood control efforts.  

The U.S. Army Corps of Engineers’ (Corps) were charged with construction, maintenance, and operation of the Mississippi River Gulf Outlet (MRGO), a navigational channel. This mandate was separate from the Corps’ efforts directed at flood control and levee construction and maintenance in southern Louisiana.  

Over decades, the Corps failed to prevent the MRGO from expanding well beyond its intended width, destroying wetlands which are protective against storm surges. This in contravention of the National Environmental Policy Act and despite repeated internal and external reports warning of the danger of not shoring up the MRGO’s banks. This failure was a substantial cause of the breach of a levee, leading to catastrophic flooding of St. Bernard parish in the New Orleans metropolitan area.  

Previous instances  

This case relies on Central Green v. United States (U.S. Supreme Court, 2001), wherein Justice Stevens held that the U.S. was not entitled to immunity under the FCA from damage caused by any and all flood waters. Instead, the government must show that flooding is connected with projects serving a primarily flood control purpose, in order for mismanagement of such projects to grant immunity.  

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Refugee Appeal No. 76374

Date: 28 October 2009

Court: New Zealand Refugee Status Appeals Authority

Citation: Refugee Appeal No. 76374

Short summary  

A refugee applicant from Burma claimed to have a well-founded fear of persecution by her home government because of her involvement with groups adverse to the government’s interests and aiding cyclone victims. She was granted asylum in part due to her disaster relief assistance activity. 

Summary by: Lucas Robinson

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision holds moderate weight in New Zealand with respect to cases in which an individual is persecuted for their political opinion as expressed via assistance following a climate disaster.  

Key facts 

The applicant was a woman from Rangoon/Yangon, Burma/Myanmar with children. She was a self-employed businesswoman until she went to New Zealand. While in her home country, the applicant became part of the pro-democracy movement. She helped Buddhist monks communicate about the situation in Burma during the late 90s into the 2000s. She would arrange the meetings and help the monks get to the location of the meetings. The applicant was also tasked with exchanging money on the black market multiple times.  

When Burma was hit by Tropical Cyclone Nargis in 2008, the applicant had to get more money from the black market to buy food rations and other disaster relief materials. The applicant assisted in distributing the disaster relief materials. 

The applicant moved to New Zealand in late 2008 and began speaking with family through videochat. While in New Zealand, associates of the applicant were arrested and given harsh sentences for their political activities. Also, while taking to her sister on video-chat, the applicant learned the government was arresting people who helped with disaster relief and that the government was inquiring about her.  

Previous instances

 The applicant was denied refugee status at her initial hearing because of a lack of well-founded fear of persecution. 

Summary of holding

The main issues presented were: Does the appellant-applicant have a well-founded fear of being persecuted? And, if so, is that fear recognized under the Refugee Convention?  

The appeals court found that the applicant had a well-founded fear of persecution because of the documented unjust punishments of other members of groups she belonged to. In particular, the government’s demonstrated interest in the applicant, and the likelihood she would suffer an unjust arrest and punishment if returned home, constituted this well-founded fear. Further, the court found that the applicant’s political opinion – one ground for relief under the Convention – encompassed her actions in aiding disaster relief efforts. As such, the applicant was granted refugee status.

By failing to take all these factors into consideration, the Prefect disregarded Provision 11 in its decision to deport Mr. Sheel.  

Potential takeaways for future climate migration litigation 

  • This case involves an individual who feared return to her home because of state persecution of individuals who assisted in disaster relief. It therefore shows how a government’s response, or lack thereof, to a natural disaster can indirectly trigger a ground for refugee protection. 
  • The Burmese government actively rejected support from outside entities for disaster relief after the cyclone. The government then began to punish those who tried to provide disaster assistance themselves, opening the door for claims of political opinion persecution in the context of climate disasters.  
  • The appeals court did not address whether suffering from the cyclone itself, and the government’s lack of adequate response, might constitute persecution, but, as in other cases in the region, the answer likely would have been no under the Refugee Convention.  
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N v. United Kingdom, Application No. 26565/05

Date of judgement: 27 May 2008

Court: European Court of Human Rights

Citation(s): N v. The United Kingdom, Appl. No. 26565/05, Council of Europe: European Court of Human Rights, 27 May 2008

Short summary 

The European Court of Human Rights (ECtHR) formerly established a very high threshold for the protection of asylum seekers with severe health conditions under Art. 3 of the European Convention on Human RIghts in the case of an Ugandan woman suffering from HIV. 

Summary by: Claudia Broadhead

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 3 right to prevent of inhumane or degrading treatment or punishment under the European Convention on Human Rights (ECHR). See the Paposhvili decision for further elaboration upon this notion. 

Key facts

The applicant was an Ugandan woman who entered the UK in 1998 under a false identity. Within days, she applied for asylum, claiming that she had been raped by the National Resistance Movement in Uganda because she was associated with the Lord’s Resistance Army. She was diagnosed as being HIV positive and developed Kaposi’s sarcoma, an AIDS defining illness. Medication was only available in Uganda at considerable expense and not easily accessible from her hometown. The applicant claimed that her removal to Uganda would violate her Art. 3 ECHR right (prohibition of torture or inhuman or degrading treatment or punishment).

The Secretary of State refused the asylum claim on 28 March 2001 on grounds of credibility, and also because it was not accepted that the Ugandan authorities were interested in the applicant. The applicant’s Art. 3 claim was also rejected, with the Secretary of State noting that treatment of AIDS in Uganda was comparable to any other African country, and all the major anti-viral drugs were available in Uganda at highly subsidized prices. 

Summary of holding

The ECtHR first stated that AIDS drugs available under the National Health Service (NHS) in the U.K. could also be obtained locally in Uganda, and most were also available at a reduced price through UN-funded projects. The applicant’s return would not, therefore, be to a complete absence of medical treatment, and so would not subject her to acute physical and mental suffering. 

The ECtHR found that the decision to remove someone who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the contracting state may raise an issue under Art. 3, but only in a very exceptional case where the humanitarian grounds against the removal are compelling (para. 42). 

In particular, the court found that for ill-treatment to fall within the scope of Art. 3, it must attain a minimum level of severity that is relative and dependent on all the circumstances of the case, including the duration of treatment, its physical and mental effects and, in some cases, the sex, age, and state of health of the victim.

Further, the ECtHR stated that although advances in medical science – together with social and economic differences between countries – entail that the level of treatment available in the contracting state and the country of origin may vary considerably, Art. 3 does not place an obligation upon the contracting state to alleviate such disparities through the provision of free and unlimited health care to all people without a right to stay within its jurisdiction. 

If humanitarian conditions are solely or predominantly attributable to poverty or to the state’s lack of resources to deal with a naturally occurring phenomenon (in this case HIV illness), the higher threshold of exceptional circumstances is applied and therefore deportation is more likely. 

Potential takeaways for future climate migration litigation

  • Thresholds. In the absence of cases specifically related to climate migration, non-refoulement cases with a medical basis for argument are generally a realistic indicator of thresholds, the interpretation of the articles, and requirements under which protection can be expected from courts. 
  • This case set an absurdly high threshold, and thus should be seen as an unfavourable case for climate migration. For further development (and reduction) of the principles in the case, see the case of Paposhvili v. Belgium. 
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Massachusetts v. EPA

Date: 2 April 2007 

Court: Supreme Court of the United States 

Citation(s): Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) 

Short summary  

Massachusetts, as well as individual and organizational petitioners, sued the Environmental Protection Agency for its refusal to regulate greenhouse gas emissions under the authority granted it by the Clean Air Act. A narrowly divided United States Supreme Court ruled that Massachusetts had standing in the suit, and that the Agency neglected its statutory duty to regulate air pollutants, including carbon dioxide, which contribute to global warming.  

Summary by: Vaughn Rajah  

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. However, it has already been curtailed in subsequent cases. See West Virginia v. EPA.

Key facts 

In 1999, private organisations filed a rulemaking petition asking the Environmental Protection Agency (EPA) to begin regulating emissions of four greenhouse gases (GHGs), including carbon dioxide (CO2), under § 202(a)(1) of 42 U.S.C.S. § 7521(a)(1), the Clean Air Act (CAA). The CAA requires EPA to prescribe standards applicable to emission of “any air pollutant” from any class of new motor vehicles which, in the EPA Administrator’s judgment, caused or contributed to air pollution reasonably anticipated to endanger public health or welfare. In 2003, EPA under the Bush Administration issued an order denying the petition, asserting that the CAA did not authorise EPA to address global climate change and that, in any event, executive policy addressing global warming warranted EPA’s refusal to regulate in such area.  

Previous instances  

Private organisations, joined by intervenor states and local governments, sought review of EPA’s order refusing rulemaking in the Court of Appeals for the District of Columbia Circuit, which denied review, and then appealed to the Supreme Court. 

One reason the D.C. Circuit denied hearing was its internal split on standing. 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 had, prior to Massachusetts, been most notably developed in the context of environmental suits by Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Lujan established that environmental plaintiffs must show 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.  

Summary of holding 

The questions before the Court were: Do any of the petitioners have standing to challenge EPA’s order refusing to make a rule regulating GHGs? If so, must the EPA regulate emissions of GHGs?  

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