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Tag: EnvironmentalPollution

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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

Click here to open the case in PDF format

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).
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 CAA de Bordeaux, 2ème chambre, 20BX02193, 20BX02195

Date: 18 December 2020

Court: Court of Administrative Appeal of Bordeaux 

Citations: N° 20BX02193, 20BX02195

Short summary  

In this judgement, the Court overturned the deportation order issued by the French department, Prefect of Haute-Garonne (“Prefect”), against Mr. Sheel on the grounds that it would subject him to a real risk of harm and even death given the high levels of air pollution in Bangladesh and the lack of access to adequate health care services, medication, and respiratory assistance equipment. 

Summary by: Jodie Tang 

Link to Original Judgement

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Weight of decision  

Though an individual judgment, this decision holds immense weight in France because it was the first time the courts extended protection to someone fearful of returning home due to environmental conditions.  

Key facts 

Mr. Sheel, a name given to him by the media, is a Bangladeshi national who entered France in 2011 and lodged an asylum application. His application was rejected in 2013, but he was granted a temporary residence permit due to his state of health from 2015 to 2017. In June 2019, the Prefect refused to renew his residence permit and required Mr. Sheel to leave France within 30 days and return to Bangladesh. This decision was overturned by the Administrative Court of Toulouse, which was appealed by the Prefect to the Court of Administrative Appeal of Bordeaux. 

Mr. Sheel suffers from a severe form of asthma and sleep apnea. Throughout his cases, however, the Prefect argued that medical evidence submitted by Mr. Sheel was inadequate to establish that he would not receive appropriate healthcare services in Bangladesh to treat his respiratory disease. He responded that, regardless of where he lived in Bangladesh, he would be unable to access appropriate medication, could not operate respiratory assistance devices in Bangladesh’s hot climate, and would have difficulty avoiding harmful air pollution.

Previous instances

On 15 June 2020, the Administrative Court of Toulouse annulled the decree of 18 June 2019 issued by the Prefect, where he refused to renew Mr. Sheel’s residence permit, ordered him to leave France and return to Bangladesh. The Court also overturned the decision of 5 August 2019 by the Prefect where he refused to grant Mr. Sheel’s request for family reunification with his wife. The Court ordered the Prefect to grant Mr. Sheel a residence permit pursuant to provision 11° of Article L.313-11 of the Code for the Entry and Residence of Foreigners and the Right to Asylum (“Provision 11”) and ordered the State to pay 1,500€ to Mr. Sheel’s counsel.  

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Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14

Date of judgement: 20 April 2010

Court: International Court of Justice 

Citation(s): Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14

Short summary 

The court introduced the concept of binding environmental impact assessments (EIAs) into international environmental laws and further elaborated upon the provisions of the International Law Commission’s draft, as well as the Trail Smelter decision. 

Summary by: Robert Los

Link to original judgement 

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Weight of decision 

This decision handed down by the International Court of Justice (ICJ) bears immense weight.  

Key facts

In October 2003, the Uruguayan government granted permission to a Spanish Company, ENCE, to build a pulp mill in Fray Bentos on the River Uruguay. Botnia, a Finnish company, then also received environmental authorization to build a mill in February 2005. The River Uruguay forms a border between Argentina and Uruguay and its use is regulated by the Statute of the Uruguay River, a bilateral treaty entered into by the two countries in 1975 (the “Statute“).

Argentina brought a complaint before the ICJ on 4 May 2006, alleging that the Uruguayan government had violated the Statute. Argentina initially sought a provisional measures order from the ICJ to suspend construction of the pulp mills, but this was dismissed. 

Argentina’s principal claims were that: 

  • Uruguay had not complied with the notification and consultation procedure set out in the Statute by authorizing the construction of two pulp mills without the prior consent of Argentina; and 
  • The mills would have an environmental impact upon the river and surrounding areas, and in particular that they would breach Uruguay’s obligation under the Statute to preserve the aquatic environment of the river by failing to protect biodiversity and fisheries.

Argentina consequently sought compensation, an end to construction, and a guarantee of compliance with the Statute in the future.

Uruguay argued that its only obligations had been to inform Argentina, which it had done, albeit after its decision had been made. Furthermore, the technology used would avoid polluting the river, as state-of-the-art waste cleansing equipment – which had been adopted by both the United States and the European Union as the best available technology – was going to be used. This position was supported by an independent World Bank study. 

Summary of holding

The ICJ held that Uruguay breached its procedural obligations by not informing the Administrative Commission of the River Uruguay (“CARU”) of its plans to construct the mills before it issued its environmental authorisations. 

Although Uruguay did notify Argentina, this communication did not take place through CARU and only occurred after the Uruguayan government had issued its authorisations. The ICJ held that, as a result, Uruguay had “disregarded the whole of the cooperation mechanisms provided for in Article 7 to 12 of the…Statute“ (para. 149). In terms of remedy, the ICJ considered that its declaration of breach constituted appropriate satisfaction.

However, the ICJ did not uphold any of the environmental claims made by Argentina. In what is potentially the most important passage of its holding, it stated that the need for an environmental impact assessment (where there is a risk that the proposed activity may have a significantly adverse impact in a trans-boundary context) has gained so much acceptance amongst States that it may now be considered “a requirement under general international law“. (para. 204)

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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

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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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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

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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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Taskin and Ors. v. Turkey (2006) 42 EHRR 50

Date of judgement: 3 March 2005

Court: European Court of Human Rights

Citation(s): Application no. 46117/99, (2006) 42 EHRR 50

Short summary

The European Court of Human Rights held that environmental pollution could affect Art. 8 of the European Convention on Human Rights (right to private and family life). The Turkish Government had violated Art. 8, even if such pollution did not have serious health-related consequences.

Summary by: Makaela Fehlhaber

Link to original Judgement 

Click here to open the case in PDF format

Weight of decision

Given the jurisdiction of the Court of Human Rights, the Taskin judgement is significant and bears considerable weight.

Key facts

The applicants were residents of Bergama. In 1992, the respondent had granted permits to operate a gold mine in Ovacik, a district within Bergama. The applicants contended that as a result of the granting of these permits, they had suffered and continued to suffer the effects of environmental damage – namely the inability to move freely and noise pollution – from the use of machinery and explosives. 

Previous instances

Subsequently, the applicants sought judicial review in the Administrative Court of the Ministry of Environment’s of the decision to issue the permits on the grounds of the risks posed to human health and safety. The application was dismissed by the Court in 1996, but the provincial governor of the area agreed to suspend mining operations for one month in the subsequent year in the interests of the public. 

In 1997 the Supreme Administrative Court overturned the Administrative Court’s decision, finding that the mining activities did not serve the public interests towards health and safety measures. This was later upheld by the Administrative Court. However, irrespective of these decisions and subsequent orders, the mine reopened in an experimental capacity in 2001. 

Ten Turkish nationals lodged an application (no. 46117/99) against the Republic of Turkey to the European Commission of Human Rights in 1998 under Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). The applicants contended that the actions of the respondent violated Art. 2 (right to life) and Art. 8 (right to private and family life) of the Convention. Under Art. 8, the applicants alleged that the use of cyanidation operating processes violated their right to private and family life as its uses posed a significant risk (para. 104). The applicants further stated that their judicial rights had not been upheld in accordance with Art. 6 (right to a fair trial) and Art. 13 (right to an effective remedy) of the Convention. Accordingly, they sought compensation for infringement of these rights, and for failure to enforce a judgement. 

The respondents contended that the arguments submitted in respect of Art. 8 were based on hypothetical risks that may or may not materialise. Accordingly, this could not be categorised as a serious and imminent risk (para. 107) as there needed to be a direct effect (para. 108) upon the lives of the applicants. Furthermore, the respondents submitted that Art. 8 was inapplicable as it had previously been determined that the risks of mining did not present any danger for the health of the local population (para. 9), as the government had conducted an Environmental Impact Assessment. The respondent further submitted that Art. 6 of the Convention did not apply for the same reasons (para. 128). 

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