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Tag: Negligence

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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

Click here to open the case in PDF format

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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Minister for the Environment v Sharma [2022] FCAFC

Date: 15 March 2022 

Court: Federal Court of Australia (intermediate appellate court) 

Citation(s): Minister for the Environment v Sharma [2022] FCAFC 35 

Short summary

In May 2021, The Australian Federal Court found that the Federal Environment Minister has a novel duty of care to prevent harm to young people as a result of climate change. After the Australian government’s appeal, the Full Federal Court now unanimously holds that the Minister for Environment of Australia does not owe a duty of care to Australian children to avoid causing personal injury or death. 

Summary by: Nicole Gasmen

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision sets aside orders 1 and 3 in Sharma by her litigation representative Sister Marie Brigid Arthur v. Minister for the Environment [2021] FCA 560. It is binding in Australia courts.  

Key facts 

See: https://legal.earthrefuge.org/sharma-v-minister-for-the-environment/  

Previous instances  

In July 2021, the Federal Court of Australia held that the Australian Minister for Environment owed a novel duty of care to Australian children under the Environment Protection and Biodiversity Conservation Act of 1999 (EPBC Act).  

This duty required the minister to take reasonable care to avoid causing personal injury or death to all Australian children at the time of the proceeding via the carbon dioxide emissions of the Vickery Extension coal project. The minister appealed the decision, and the Full Federal Court heard the appeal in October 2021. 

Summary of holding 

  • The Full Federal Court held unanimously (Chief Justice Allsop, Justice Beach, and Justice Wheelahan) that the novel duty of care to avoid causing personal injury or death should not be imposed on the Minister for Environment. Each justice wrote separately. 
  • Chief Justice Allsop reasoned that the duty of care should not be imposed because: 
    • The character of this matter is not appropriate for the judiciary; it should be left to lawmakers. (¶¶ 248-253) 
    • The duty of care was inconsistent with the EPBC Act because it is not primarily concerned with the protection of the environment or response to global warming. (¶ 101) 
    • The Minister of Environment lacks control over the harm of climate change and of climate-related disasters such as brushfires and heatwaves. Due to the lack of determinacy of the direct cause of these climate events, the Minister lacks liability for damages caused by such brushfires, heatwaves, and rising sea levels, not to mention damages ongoing into the future. (¶¶ 341-343) Further, the children who brought the case lack legal special vulnerability. (¶¶ 338-341) 
  • Justice Beach reasoned that the duty of care should not be imposed because: 
    • “There is not sufficient closeness and directness between the Minister’s exercise of statutory power and the likely risk of harm to the respondents and the class they represent.” (¶¶ 362-363) 
    • Imposing a duty would result in indeterminate liability. (¶ 702) 

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Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560

Date of judgement: 27 May 2021

Court: Federal Court of Australia

Citation(s): [2021] FCA 560

Short summary

The Australian Federal Court found that the Federal Environment Minister has a novel duty of care to prevent harm to young people as a result of climate change. Despite this finding, the Court did not issue an injunction to prevent the Australian government from extending a coal mine.

Summary by: Erin Gallagher

Link to original judgement 

Click here to open the case in PDF format

Weight of decision

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

Key facts

The applicants were eight Australian school children, and a catholic nun who acted as their representative. They brought the claim on behalf of themselves but also other children residing in Australia. 

The applicants made two claims against the Environment Minister. Firstly, they sought a declaration that a duty of care is owed by the Minister under the law of negligence and secondly, they argued that the Minister would be failing to exercise this duty of care if she approved a pending application from the Vickery coal mine to extract an additional 33 million tonnes of coal from a mine that had been set up and operated by Whitehaven, Vickery’s parent company. They therefore sought an injunction to restrain an apprehended breach of that duty.

The Minister is responsible for administering the Environment Protection and Biodiversity Act 1999 (Cth) (EPBC Act) and one of its purposes is providing for protection of the environment. Under the Act, the extension of the Vickery Coal mine would be prohibited unless the Minister approves the project under s130 and 133 of the Act. 

If approved, the increased extraction would result in an estimated 100 million tonnes of additional CO2 emissions. The applicants argued that children were particularly vulnerable to the effects of climate change and more likely to live through any future impacts caused by such emissions. 

The Applicants provided evidence from the IPCC and other expert climate scientists to demonstrate CO2 emissions will contribute to the increasing global temperature, and that there are devastating impacts resulting from this temperature increase. The Minister did not dispute this evidence. 

The applicants claimed that the additional 100 million tonnes of CO2 will contribute to the global increase in temperature. The Minister argued that the additional CO2 would be within the Paris Agreement’s budget.  

The Minister also argued that there is no such duty of care, and that recognition of one would impair her statutory task under the EPBC Act. She also denied that any injury to the Children resulting from approval of the project is reasonably foreseeable. She further argued that if such a duty of care were recognised, there is no reasonable apprehension that the duty will be breached and thus no grounds to grant an injunction thus the proceedings should be dismissed. 

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City of New York v. Chevron Corp. 

Date: 2 April 2021 

Court: United States Second Circuit Court of Appeals 

Citation(s): City of N.Y. v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021) 

Short summary  

New York City sued the five largest producers of fossil fuels for contributing to climate change under state tort law. The Second Court of Appeals affirmed the District Court’s dismissal of the suit, holding that state common law claims to redress greenhouse gas emissions are displaced by federal common law, which in turn is displaced by the Clean Air Act.  

Summary by: David Cremins

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision is binding on all courts in the Second District and persuasive in other Districts.  

Key facts 

New York City filed a federal lawsuit in the Southern District of New York against the five largest investor-owned fossil fuel producers seeking costs the City had incurred and would continue to incur to protect itself and its residents from the impacts of climate change. The City alleged that the defendants “produced, marketed, and sold massive quantities of fossil fuels” despite knowing for many years that the use of fossil fuels caused emissions of greenhouse gas emissions that would accumulate and remain in the atmosphere for centuries, causing “grave harm.” The City laid alleged state common law tort claims of public and private nuisance and illegal trespass, seeking money damages and an injunction to abate past injuries.  

Previous instances  

The district court dismissed the lawsuit, holding that federal common law should govern the City’s claims because they were based on transboundary emissions. The court further concluded that the Clean Air Act displaced any federal common law claims (see American Electric Power v. Connecticut) with regards to domestic emissions and that foreign emissions should not be regulated by a domestic court, so as not to infringe on the political branches. The City appealed to the Second Circuit Court of Appeals seeking reversal of the granted motion to dismiss.  

Summary of holding  

The Second Circuit Court of Appeals affirmed the dismissal of New York City’s lawsuit seeking climate change damages from oil companies, following the reasoning of the district court. First, the Second Circuit held that federal common law displaced the City’s state-law public nuisance, private nuisance, and trespass claims because the lawsuit would regulate cross-border greenhouse gas emissions, albeit “in an indirect and roundabout manner,” and because state law claims “would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” The Second Circuit then held that the Clean Air Act, in turn, displaced federal common law claims related to domestic emissions. The Second Circuit cited American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), as establishing “beyond cavil” that the Clean Air Act displaced federal common law nuisance suits to abate domestic transboundary greenhouse gas emissions. 

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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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Case of the Indigenous Community Yakye Axa v. Paraguay 

Date: 17 June 2005 

Court: Inter-American Court of Human Rights 

Citation(s): IACHR Series C no 125 (Official Case No) IHRL 1509 (IACHR 2005) 

Short summary  

The Yakye Axa Indigenous Community brought a complaint against the state of Paraguay, alleging failure to acknowledge and enforce their right to own and occupy their ancestral lands. In ruling for the Community, the Inter-American Commission on Human Rights recognized that the realization of the right to life is necessarily linked to and dependent on the physical environment. The result was a state obligation to adopt positive measures to fulfill a standard of dignified life.  

Summary by: Sophie Sklar

Link to Original Judgement  

Click here to open the case in PDF format

Weight of decision  

This case holds substantial weight in Paraguay and precedential authority in other Inter-American disputes, insofar as it reaffirms the Inter-American Court’s broad interpretation of right to life, which includes consideration of health, environment, education, and food standards.  

Key facts 

The Yakye Axa Indigenous Community had a land claim under consideration since 1993 without resolution. This made it impossible for the Community and its members to own their territory or have adequate access to food and health care.  

Esteban Lopez, leader of the Yakye Axa Community, testified to the Inter-American Court that: 

“Living conditions of the members of the Yakye Axa Community at the place where they currently live are difficult. The settlement is surrounded by cattle ranchers’ land, which they are not allowed to enter. They cannot hunt freely, they have problems finding food and protecting themselves in the country to avoid conflicts with the white persons. The men of the Community cannot feed their children regularly. The witness has to go elsewhere to obtain water and food for the boys and girls. Most members of the Community are jobless.” (¶ 15) 

Previous instances  

On March 3, 1997, the Yakye Axa Indigenous Community filed a suit against firms which had rented the land claimed by the Community, invoking the Paraguayan Constitution, as well as the provisions of Article 14 of Law 234/93 that ratified the International Labor Organization Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries. On April 17, 1997, the Civil and Commercial Trial Court, tenth rotation, Secretariat No. 19, dismissed this action on time of filing grounds.1 

In a separate but related proceeding, the Inter-American Commission on Human Rights filed before the Inter-American Court an application against the State of Paraguay. The Commission alleged that the State has not ensured the ancestral property rights of the Yakye Axa Indigenous Community and its members. The Commission filed the application based on the American Convention on Human Rights, for the Court to decide whether Paraguay breached Articles 4 (Right to Life); 8 (Right to Fair Trial); 21 (Right to Property) and 25 (Judicial Protection) of the Convention with respect to their treatment of the Yakye Axa. The Commission asked the Court to order the State to take certain steps as reparation and to reimburse costs and expenses. 

Summary of holding 

The Court had to establish whether the State generated conditions that worsened the difficulties of the Yakye Axa and, if so, whether it took appropriate positive measures to fulfill its obligations. 

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