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Tag: ParisAgreement

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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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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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Future Generations v. Ministry of the Environment and Others

Date:  5 April 2018 

Court: Supreme Court of Justice of Colombia

Citation(s):  STC4360-2018

Short summary  

25 young plaintiffs sued the Colombian government to stop deforestation in the Amazon rainforest. A 4-3 majority on Colombia’s Supreme Court ruled for the plaintiffs – finding that their and future generations’ fundamental rights were threatened by loss of biodiversity and climate change – and ordered the Colombian government to stop deforestation by 2022, which it failed to do.

Summary by: Saw Aung Aung and David Cremins

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The Supreme Court of Justice is the final arbiter of constitutional questions in Colombia and its ruling is binding on both government and private actors. However, compliance issues following the ruling in Future Generations highlight the limits of the Court’s power..   

Key facts 

Between 2015 and 2016, deforestation in the Amazonas region of Colombia increased by 44%. This poses a risk not just to the region but to the world, as the Amazon acts as the “lungs of the earth” and is critical to global sustainability; deforestation impacts water supplies, degrades soil health, and increases carbon emissions.

This rapid increase in deforestation was in part caused by the end of hostilities between the Colombian government and the Revolutionary Armed Forces of Colombia, which created a power vacuum in rural areas of the country. Small farmers, large ranchers, and corporations alike began clearing rainforest rapidly to make room for agriculture, ranching, and mining, and the state was largely powerless to stop this trend.

Colombia, as a signatory to the 2015 Paris Agreement and other international mechanisms, has obligated itself to reach net zero emissions. However, as is true around the world, limited progress has been made towards these goals.

Dejusticia, a social justice non-profit based in Bogotá, grew concerned about the deforestation and the climate crisis. So, they brought together 25 young people, ranging in age from 7 to 25 years old, as plaintiffs in a tutela action – directly asserting a violation of their individual constitutional rights to life, health, water, food, and a healthy environment – in Colombia’s Constitutional Court system in January 2018.

Previous instances  

The first court to hear this case dismissed the complaint on standing grounds, holding that the plaintiffs’ claim was collective, rather than individual, and therefore not properly pled as a tutela action; the plaintiffs appealed to the Supreme Court of Colombia.

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