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Tag: Jurisdiction

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Washington Environmental Council v. Bellon 

Date: 17 October 2013 

Court: United States Ninth Circuit Court of Appeals 

Citation(s): Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1141-46 (9th Cir. 2013) 

Short summary  

Washington state residents and non-profits sued the Washington State Department of Ecology over its failure to regulate greenhouse gas emissions in accordance with the Clean Air Act. The Court of Appeals vacated the District Court below and held that Plaintiffs failed to show standing under Article III of the U.S. Constitution by failing to establish causation for and the redressability of their injuries. 

Summary by: David Cremins

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The ruling by the Circuit Court of Appeals holds precedential authority in the Ninth District (Washington, Oregon, California, Nevada, Idaho, Montana, Hawaii, and Alaska) and persuasive authority in other U.S. Circuits.  

Key facts 

Washington State has five oil refineries subject to regulation under § 202(a) of the Clean Air Act (CAA) and is required by the Environmental Protection Agency (EPA) to develop a State Implementation Plan (SIP) to define greenhouse gas (GHG) emission limits (known as National Ambient Air Quality Standards [NAAQS]) for these refineries, which accounted for about 6% of Washington’s state emissions in 2008.  

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 has been most notably developed in the context of environmental suits by the cases described below. 

Previous instances  

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), established that environmental plaintiffs must establish 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.  

Massachusetts v. EPA held that GHGs are air pollutants subject to regulation under the CAA, a major win for environmental litigation. However, it also put in place a heightened standard for standing for non-state actors seeking to enforce EPA regulations, e.g., by promulgation of specific NAAQS in states’ SIPs.  

Summary of holding 

Plaintiffs’ claim (that Washington’s SIP failed to establish NAAQS that limited GHG emissions at key refineries) is not addressable by courts because they lack Article III standing. Non-profit environmental groups and individuals plausibly sustain economic, recreational, and health injuries due to CO2 pollution and attendant climate change. However, the chain of causation between these refineries’ GHG emissions and global climate change is too weak and attenuated to satisfy the second prong of the standing test. Further, any order to regulate these refineries would have a negligible effect on redressing plaintiffs’ localized injuries incurred because of global temperature rise. This is distinguishable from Massachusetts, wherein Massachusetts was afforded relaxed standing requirements due to its status as a quasi-sovereign, thereby satisfying Lujan. This “special solicitude” does not extend to these non-state litigants, and even if it did their claims would still be tenuous. 

Potential takeaways for future climate migration litigation 

  • This case demonstrates the difficulty of achieving standing before United States federal courts in cases concerning specific harms from global climate change. It is one of many cases that could demonstrate this proposition, but it is notable because it involves a liberal-leaning court refusing to enjoin a liberal state from enacting federally mandated regulation of its fossil fuel emissions.  
  • Such standing issues may not be as prevalent in migration cases where an injury is already established, and a government agency’s action can provide a clear remedy, such as resettlement.  
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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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Montenegro v. Ashcroft

Date: 16 May 2002

Court: United States Court of Appeals, Third Circuit

Citation: 68 Fed. Appx. 290

Short summary  

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

Summary by: Elisa D’Amico

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

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

Key facts 

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

Previous instances  

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

Summary of holding 

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

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

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

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

Potential takeaways for future climate migration litigation 

  • Montenegro v. Ashcroft may set precedent for asylum claims based on climate-induced poverty and violence. It recognizes the link between economic migration and persecution, allowing individuals to be granted asylum based on sector- or work-related persecution. This case highlights the significance of considering economic aspects in asylum cases, especially in regions facing resource scarcity and escalating tensions attributable to climate change.
  • As climate change worsens, placing increased pressure on the agricultural sector, this case may gain greater significance for individuals seeking asylum based on persecution associated with their sectoral involvement. By recognizing the impending stress on agricultural sector workers, the case sets a vital standard for courts to consider when evaluating the challenges faced by those displaced within this sector. For example, agricultural workers may confront heightened violence and persecution as a result of escalating resource competition driven by climate change. Challenges also extend to women engaged in informal agricultural work, who find themselves uniquely susceptible to exploitation and harassment amid climate-related internal displacement. Moreover, as climate change renders certain work and livelihoods unmaintainable, climate-afflicted migrants often find themselves moving as economic migrants, seeking alternative opportunities due to the adverse effects of climate change on their traditional occupations.
  • Advocates should also take note of how small-scale and Indigenous farmers face heightened persecution in the context of climate change, leveraging this and similar cases to advocate for more comprehensive asylum frameworks which recognize the nuanced ways environmental degradation, economic precarity, and pre-existing social vulnerabilities contribute to persecution.
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Hagi-Mohamed v Minister for Immigration & Multicultural Affairs [2001] FCA 1156

Date of judgement: 23 August 2001

 Court: Federal Court of Australia

Citation(s): [2001] FCA 1156

Short summary 

The Federal Court of Australia confirmed that internal relocation must be considered separately from the question of whether a well-founded fear of persecution exists in evaluating claims for protection under the 1951 Refugee Convention.

Summary by: Joseph Lavelle Wilson            

Link to original judgement 

Click here to open the case in PDF format

Weight of decision

This decision of the Federal Court bears moderate weight in the Commonwealth of Australia. 

Key facts

Ahmed Dahir Hagi-Mohamed, a citizen of Somalia, arrived in Australia on 15 September 1995. He filed an application for a protection visa under s. 36 of the Australian Migration Act 1958 (Cth) in November 1995, claiming that the Australian government had an obligation to protect him under the Convention Relating to the Status of Refugees 1951 (the Convention). The basis of his application was that he had a well-founded fear of persecution in his home country of Somalia, due to his membership of several social groups. 

Hagi-Mohamed claimed that he was a member of the particular social group (that of homosexual men), as well as a member of two clans – the Geledi clan and the Hawadle clan.

Previous instances

The Minister for Immigration & Multicultural Affairs and the Refugee Review Tribunal (RRT) rejected the application for protection. The RRT accepted that each group identified by Hagi-Mohamed was in fact a particular social group, and that he belonged to each one. The RRT found that the motivating reason for the persecution of Geledi clan members by Somalian militias was to take resources from the Geledi clan, specifically arable land and crops, rather than for the reason that they were members of the Geledi clan. The RRT also found that Hagi-Mohamed’s association with his mother’s clan, the Hawadle, did not put him at risk of persecution because there was evidence that other parts of Somalia were controlled by the Hawadle and he could be safe there. With respect to Hagi-Mohamed’s claim based on his homosexuality, the RRT found that although he did belong to the cognisable social group, that group did not face danger rising to the level of persecution under the Convention.

Hagi-Mohamed appealed to the Federal Court of Australia. Justice Stone issued a decision in favour of the government, which was subsequently appealed by Hagi-Mohamed and heard by Justices Wilcox, Weinberg, and Hely in the Federal Court of Australia. 

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