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Tag: RighttoHealthyEnvironment

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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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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

Click here to open the case in PDF format

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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Juliana v. United States 

Date: 17 January 2020 

Court: U.S. Court of Appeals for the Ninth Circuit 

Citation(s): Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020)

Short summary  

A group of young people sued the United States government for failing to prevent climate change, seeking an order requiring the government to develop a plan to phase out domestic fossil fuel emissions. The plaintiffs claimed violations of their substantive due process, equal protection, the Ninth Amendment, and the public trust doctrine. The court found that the plaintiffs established injury-in-fact and causation for Article III standing but that their claim failed for lack of redressability. 

Summary by: Nicole Gasmen and Luke Hancox

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision comes from the Ninth Circuit of the United States Court of Appeals and is therefore binding on all courts in the Circuit and persuasive in other federal courts.   

Key facts 

The plaintiffs were twenty-one young citizens, an environmental organization, and a “representative of future generations.” [1165] They sued the President (later dismissed from the action), the United States, and federal agencies. The complaint accused the government of continuing to “permit, authorize, and subsidize” [1165] fossil fuel use, despite awareness of its risks, leading to various climate-change-related injuries. The plaintiffs’ claims varied from psychological harm and impairment of recreational interests to exacerbated medical conditions and property damage. 

The complaint asserted violations of the plaintiffs’ constitutional rights: 

“(1) the plaintiffs’ substantive rights under the Due Process Clause of the Fifth Amendment; (2) the plaintiffs’ rights under the Fifth Amendment to equal protection of the law; (3) the plaintiffs’ rights under the Ninth Amendment; and (4) the public trust doctrine.” [1165] 

The plaintiffs sought declaratory relief and an injunction ordering the government to implement a plan to “phase out fossil fuel emissions and draw down excess atmospheric [carbon dioxide].” [1165] 

The court noted that the District Court record and this appeal recognized climate change is occurring at a rapid pace. The court stated that rising carbon emissions would wreak havoc on the Earth’s climate if left unchecked, and that the federal government long understood these risks and affirmatively contributed to their worsening. 

The government largely did not contest the factual basis for the plaintiffs’ claims, only that they lacked standing to pursue them. 

Previous instances  

The District Court denied the government’s motion to dismiss. That court stated that the plaintiffs had standing to pursue their claims that the government violated their constitutional rights, including a Fifth Amendment right to a “climate system capable of sustaining human life.” [1165] The District Court also found a separate viable “danger-creation due process claim” [1165] based on the government’s lack of regulation on third-party emissions and a public trust doctrine claim. 

At summary judgment, the District Court dismissed the President as a defendant and dismissed the plaintiffs’ Equal Protection claim in part. That court also dismissed the plaintiffs’ Ninth Amendment claims. The government then sought this interlocutory appeal to resolve the standing issue and other grounds for dismissal. 

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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

Click here to open the case in PDF format

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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Cordella et al. v. Italy

Date: 24 January 2019 

Court: European Court of Human Rights, Strasbourg  

Citation: [2019] ECtHR 029 (Application Nos: 54414/13 and 54264/15)

Short summary  

This case held that the European Convention on Human Rights, Articles 8 (Right to respect for private and family life) and 13 (Right to an effective remedy), imposes an obligation on the Italian state to de-pollute areas contaminated by a steel factory.  

Summary by: Yusuf Lahham

Link to original judgement

Click here to open the case in PDF format

Weight of decision  

The European Court of Human Rights (ECtHR) applies the European Convention on Human Rights (ECHR) and all Contracting States are bound by its judgments. As this case originated in an application against the Republic of Italy, the judgment holds the weight of directly applicable constitutional law in Italy. Decisions are also relevant to other States as they are viewed as a ‘living interpretation’ of the ECHR.  

Key facts 

The applicants, over 100 Italian citizens, brought a complaint to the ECtHR on the 29th of July 2013, relying on Articles 2, 8, and 13 of the Convention. The complaint stemmed from the harmful emissions a steel factory was producing, affecting inhabitants of the city of Taranto and its neighbouring municipalities.  

Ilva, a company owned by Riva group, operates the largest steelworks complex in Europe, which is located in Taranto, Italy. The harmful impacts of the complex on the local environment have been noted since 1990, when the Italian Council of Ministers listed certain municipalities around Taranto at “high environmental risk.” Between 1997 and 2017, multiple scientific reports were produced from different departments and investigative authorities, detailing the extent of the impact of the emissions on the local people and environment. Most notably, a 2017 ARPA report confirmed the causal link between industrial emissions and health damage in the areas marked “at risk.”  

In 2003, 2004, and 2006, Ilva agreed to organise measures to reduce the environmental impact of the factory, designating a third party to identify the main source of harmful particle emission and introduce authorised limits for emission levels. Decree no. 155, issued under the Air Quality Directive of 2008/50CE, set the deadline for the limiting of polluting production to December 2012. In 2011, the Ministry of Environment issued an AIA (integrated environmental authorization), allowing the company to continue to produce steel, subject to its adoption of BAT (“best available techniques”) to reduce the impact of polluting emissions on the environment. In 2012, a second AIA was granted, modifying the first and fixing new conditions. From 2012-2016, “salva-Ilva” decree-laws were adopted concerning the activity of Ilva in relation to the “imminent” purchase of the company. This effectively postponed the deadline to execute measures to safeguard the environment until 2023.  

Previous instances 

There were several criminal proceedings brought against the managers of the Ilva company for causing an ecological disaster: the poisoning of food substances, failure to prevent accidents at a place of work, degradation of public goods, and the emission of polluting substances into the atmosphere. Some of these cases resulted in convictions in 2002, 2005, and 2007. Furthermore, the Court of Cassation sentenced the managers of the factory in Taranto for atmospheric pollution and the emission of hazardous particles. It was also noted that the production of the particles at the factory continued, despite the agreements made in 2003 and 2004.  

On 31st of March 2011, the CJEU asserted that Italy had failed to fulfil its obligation under Directive 2008/1/EC of the European Parliament on the prevention and reduction of pollution. It was held that Italy had not adopted necessary measures to ensure industrial plants were being operated in accordance with the regulations provided for in the directive. In 2014, the European Commission called upon the Italian authorities to remedy the pollution issue at the Taranto factory site, noting that the emissions from the steel production process had not decreased and were resulting in serious environmental and health consequences for the local population.  

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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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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.
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AF (Tuvalu) [2015] NZIPT 800859

Date: 20 October 2015

Court: New Zealand Immigration and Protection Tribunal

Citation: [2015] NZIPT 800859

Short summary

This case was heard before the New Zealand Immigration and Protection Tribunal. It is an appeal against the decision taken by a refugee and protection officer to deny refugee status or protected person status to the appellant, a 25-year-old man of Tuvaluan nationality who had been served with a deportation order. The appellant based his appeal on the claim that he had a real chance of being persecuted if returned to his country of nationality in relation to an infringement of his right to work and of his right to safe drinking water. The appellant also claimed that his deportation to Tuvalu would be a violation of his daughters’ rights under the 1989 Convention on the Rights of the Child. The Tribunal dismissed the appeal on the ground that the appellant could reasonably access clean drinking water and reasonably attempt to gain employment in Tuvalu.

Summary by: Lucas Robinson

Link to original judgement

Click here to open the case in PDF format

Weight of decision

The New Zealand Immigration and Protection Tribunal is an independent judicial body and has jurisdiction to hear appeals against deportations, refugee claims, and other immigration decisions. A decision from the New Zealand Immigration and Protection Tribunal can be reviewed by the High Court only if an appeal is made on a point of law. In that sense, the New Zealand Immigration and Protection Tribunal’s decisions carry substantial weight in New Zealand domestic law.

Key facts

The appellant was a citizen of Tuvalu, who was 25 years old at the time of the hearing. In 2003, he moved to New Zealand with his mother. This event forced him to drop out of school in Tuvalu. He has been living in New Zealand since then and never went back to school.  In 2008, he married a New Zealand citizen and they had two daughters together. Between 2008 and 2014, the appellant was convicted of multiple offences/crimes in New Zealand. As a result, in July 2014, the appellant was served with a deportation order. In December 2014, the appellant submitted a claim to be recognised as a refugee or as a protected person. A refugee and protection officer denied his claim. This case is the appeal against the aforementioned refusal.

The appellant appealed the decision on three grounds. First, the appellant fears returning to Tuvalu because of the lack of employment opportunities. Indeed, he fears that the government of Tuvalu will discriminate against him due to his criminal convictions and lack of formal education, therefore violating his right to work. Second, the appellant claims that, if returned to his country of nationality, he would not be able to exercise his right to access safe drinking water due to the effects of climate change. Third, the appellant claims that his deportation to Tuvalu would violate his daughters’ rights under the 1989 Convention on the Rights of the Child.

Previous instances

In July 2014, the appellant was served with a deportation order as a result of his convictions for crimes he committed between 2008 and 2014. His attempt to get this deportation order revoked was unsuccessful. Facing deportation, the appellant submitted an application to be recognised as a refugee or protected person. A refugee and protection officer declined to grant the appellant’s application.

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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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