EnvironmentalLaw – Earth Refuge Legal

July 1, 2022September 4, 2022

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

Date: 1 July 2022

Court: The Brazilian Federal Supreme Court

Citation: ADPF 708

Short summary

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

Summary by: Sophie Sklar

Link to Original Judgement

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Weight of decision

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

Key facts

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

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

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

The federal government made two main arguments in response:

First, that the Court’s interference in this matter would violate the separation of powers doctrine, as this judgement would compel the executive branch to reactivate the Climate Fund via the legislative branch.

Additionally, that, since the Climate Fund was derived from multilateral treaties on climate change and was not Brazilian law, the federal government was not bound by it.

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

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July 29, 2021September 22, 2023

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

Date: 29 July 2021

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

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

Short summary

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

Summary by: Natalia Chirinos Arévalo

Link to Original Judgement

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Weight of decision

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

Key facts

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

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

Previous instances

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

Summary of holding

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

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

Potential takeaways for future climate migration litigation

The decision in the Caso Mecheros – as it is commonly known – in responding favourably to a lawsuit filed by nine girls from the Amazon, was received as a historic triumph. It creates legal precedent for displaced populations in Ecuador, insofar as it links the consequences of gas flaring with violations of fundamental, constitutionally enshrined rights.

The judgment highlights the adverse health effects, including cancer, suffered by numerous citizens because of the pollution caused by gas flaring. Consequently, it is arguable that the prohibition of gas flaring, as mandated by the court’s decision, should be integrated into the public policies to other countries in the near future. The evidence presented by the plaintiffs, detailing the detrimental health impacts stemming from gas flaring, could be presented to underscore this point. Furthermore, an additional line of argument could be established on the premise that the gas flaring has compelled the population to relocate due to the direct infringement on their health and well-being.

The rights at stake predominantly pertain to third-generation human rights, encapsulating the social, cultural, economic, and environmental aspects of individual and communal welfare. This connects to a growing trend in Latin American jurisprudence, whereby the rights of nature, indigenous groups, and future generations, and international climate commitments, have been found enforceable by national courts (see, e.g., summaries of cases from Colombia, Paraguay, and Suriname).

July 30, 2020July 26, 2022

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

Date: 30 July 2020

Court: Supreme Court of the Republic of Ireland

Citation(s): [2020] IESC 49

Short summary

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

Summary by: Samyuktha Banusekar

Link to Original Judgement

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Weight of decision

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

Key facts

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

Previous instances

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

Summary of holding

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

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

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January 1, 2018June 25, 2023

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.