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Tag: CO2emissions

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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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Bundesverfassungsgericht, Order 1 BvR 2656/18, 1 BvR 96/20, 1 BvR 78/20, 1 BvR 288/20, 1 BvR 96/20, 1 BvR 78/20

Date of judgement: 24 March 2021

Court: Federal Constitutional Court of Germany 

Citation(s): BVerfG, Order of the First Senate of 24 March 2021 – 1 BvR 2656/18 -, paras. 1-270

Short summary 

In its decision, the Federal Constitutional Court classified the German Climate Protection Act in its current form as violative of fundamental rights because it disproportionately shifts the burden of greenhouse gas reduction to future generations, thereby recognising for the first time the existence and violation of the intertemporal dimension of their civil rights. 

Summary by: Robert Los

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The order bears immense weight in Germany as the judgement indirectly grants a right to future generations with regard to protection or relief from CO2 emissions and other climate changes. 

Key facts

The Federal Climate Change Act (Klimaschutzgesetz – KSG) was drafted in response to the need for greater climate action efforts. Its purpose is to afford protection against the effects of global climate change (§ 1 S.1), and as stated under § 1 S.3, the basis of the KSG is the obligation under the Paris Agreement as well as the commitment made by the Federal Republic of Germany to pursue the long-term goal of greenhouse gas neutrality by 2050. 

Greenhouse gas emissions must be gradually reduced by the target year 2030 by at least 55%, relative to 1990 levels (§ 3(1)). In conjunction with Annex 2, § 4(1) sets out the annual permissible emission levels for various sectors in line with the reduction quota for the target year 2030. Provisions applicable beyond 2030 are not contained in the KSG. Rather, § 4(6) provides that in the year 2025, the Federal Government must – by way of ordinances – set annually decreasing emission levels for periods following 2030.

In support of their constitutional claims, the complainants − some of whom live in Bangladesh and Nepal − relied primarily on constitutional duties of protection arising from Art. 2(2) of the German Constitution Grundgesetz (GG), and Art. 14(1) GG, as well as the a fundamental right to a future in accordance with human dignity, and the fundamental right to an ecological minimum standard of living (ökologisches Existenzminimum), which they derived from Art. 2(1) GG in conjunction with Art. 20a GG and from Art. 2(1) GG in conjunction with Art. 1(1) GG. 

With regard to future burdens arising from the obligations to reduce emissions in the periods following 2030 – described by the complainants as an “emergency stop” – they relied on fundamental freedoms more generally.

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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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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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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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