Climate Litigation in Asia and the Pacific and Beyond

Climate Change, Coming Soon to A Court Near You—Report Two

• Editorial: Asian Development Bank
• Año: 2020
• ISBN:
  9789292625221
• Categoría: Biological Sciences
• Categoría: Global Warming & Climate Change

Climate change in Asia and the Pacific is deadly and impacts communities now. Regional climate litigation seeks relief in increasingly urgent ways and judges need a tool kit to respond. Report Two of this four-part series is a comprehensive review of the growing number and variety of climate lawsuits in Asia and the Pacific. It underscores the unique flavor and voice of regional jurisprudence and compares it with global approaches. No one can solve climate change alone and neither can any particular judiciary. Judges can, however, learn from each other, taking judicial excellence and applying it to the case before them.

Marching for climate justice in Maastricht. Greta Thunberg’s climate protest in Sweden galvanized people globally to march for climate justice. A growing number of lawsuits reference climate justice and argue that climate change threatens fundamental human rights (photo by Vincent M.A. Janssen).

PART ONE

RIGHTS-BASED LITIGATION AGAINST GOVERNMENTS

Governments are the most common defendants in climate change litigation. Litigants have increasingly relied on rights-based frameworks to compel governments to take climate action. In these rights-based suits, standing serves as a threshold issue. Plaintiffs must prove that they have a sufficient stake in the outcome of the case and that the judiciary can offer adequate redress. Once standing and procedural requirements are met, courts around the world deploy some legal tools to hold governments accountable.

Courts have used international human rights frameworks, constitutional rights, and domestic statutory requirements for governments to mitigate greenhouse gas (GHG) emissions. The Paris Agreement has served as a reference against which to measure the adequacy of emissions reduction targets.¹ In some cases, domestic courts have enforced national commitments made under the Paris Agreement. This section describes the range of judicial reasoning used to mandate governmental mitigation action.

I. Standing

A. Global Approaches

Standing doctrines (locus standi) address the question of who should have access to courts to adjudicate a particular claim. The criteria for establishing standing vary by jurisdiction but are generally aimed at ensuring that plaintiffs or petitioners have a sufficient stake in the outcome of the case. Their claims must also be capable of judicial resolution. Many jurisdictions have liberal standing requirements—e.g., a plaintiff must have a “sufficient” or “special” interest in the subject matter of the action.

In contrast, the United States (US) has significantly more restrictive requirements for federal cases, specifically that (i) the party has suffered an injury-in-fact or imminent risk of injury, (ii) the injury is fairly traceable to the defendant’s allegedly unlawful conduct, and (iii) the injury can be redressed by a favorable court decision. Because of these more restrictive requirements, questions about standing have played a major role in cases brought against governmental actors in the US.

1. Standing and Climate Change in the United States

The US Supreme Court first addressed the issue of standing for claims related to climate change in Massachusetts v. US Environmental Protection Agency.² A group of states, cities, and environmental organizations challenged the decision of the US Environmental Protection Agency (EPA) to not regulate GHG emissions (from motor vehicles) under federal air pollution law. The court held that the State of Massachusetts had standing to bring these claims as (i) the state had presented sufficient evidence of actual and imminent harms—sea level rise would likely swallow large amounts of coastal property, and (ii) these harms would be at least partially redressed if the EPA were to regulate emissions from motor vehicles.³ The court noted that Massachusetts had a “special position and interest” in part because it “owns a great deal of the territory alleged to be affected” and in part because of its quasi-sovereign status.⁴

Subsequent US climate cases have raised questions about whether plaintiffs can also establish standing to sue where they are (i) private parties that do not have quasi-sovereign status, and/or (ii) seeking regulation of emission sources with a much smaller GHG footprint than the entire US motor vehicle fleet.

In Washington Environmental Council v. Bellon, a federal court of appeal held that two nongovernment organizations (NGOs) did not have standing to challenge Washington State’s failure to regulate GHG emissions from five oil refineries. The plaintiffs did not show that the refineries’ emissions meaningfully contributed to global GHG levels.⁵ The court noted that the refineries were responsible for 101.1 million metric tons of carbon dioxide equivalent (CO₂e) annually (5.9% of total GHG emissions produced in the state of Washington), far less than the emissions in Massachusetts v. EPA (1.7 billion tons). As such, the court reasoned that the effect of those emissions on global climate change was “scientifically indiscernible, given the emission levels, the dispersal of greenhouse gases world-wide, and the absence of any meaningful nexus between Washington refinery emissions and global GHG concentrations now or as projected in the future.”⁶

In Juliana v. United States, a federal appellate court in California held that plaintiffs do not have standing to sue the Government of the United States for affirmatively contributing to climate change and failing to adequately control emissions from fossil fuel development and use.⁷ The appeals court found that the plaintiffs had alleged sufficiently personalized and concrete injuries—such as lost income for a ski resort employee and harmful impacts to a family farm—that were fairly traceable to the GHG emissions resulting from US fossil fuel production and use. However, the appeals court found that the remedy the plaintiffs requested—a court order to the federal government to develop and implement a comprehensive plan to draw down atmospheric concentrations of GHGs to 350 parts per million (ppm)—was beyond the court’s authority. The plaintiffs have requested judicial review of this decision. (See Part One, Section II.A.5. Rights-Based Case in the United States for further discussion of this case.)

2. Standing and Climate Change in Australia and Europe

Outside of the US context, standing requirements tend to be more relaxed, and, in many cases, standing is never briefed or discussed.⁸ But there are some cases in which non-US courts have also grappled with standing issues, including the question of what constitutes a “meaningful contribution” to climate change for standing purposes.⁹

Dual Gas Pty Ltd v Environment Protection Authority was a legal challenge to the Australian government’s approval of a new power plant. The Victorian Civil and Administrative Tribunal (VCAT) in the state of Victoria found that the release of 4.2 million tons of CO₂e annually over a 30-year projected life span of the plant would contribute sufficiently to climate change to establish standing.¹⁰

In contrast, in Friends of the Irish Environment CLG v Fingal County Council, the High Court of Ireland found that an applicant lacked standing to challenge a county’s decision to issue an airport authority a 5-year extension for planning permission to construct a new runway because there was no right of participation under the planning law.¹¹ Further, the applicant could not demonstrate “any disproportionate interference” with the right to a clean environment.¹² (See Part Two, Section V.A.3.c. A Right to an Environment in Ireland for further discussion of this case.)

Similarly, in Carvalho and Others v Parliament and Council, the European Union (EU) General Court ruled that plaintiffs did not have standing to bring a case against the EU because they could not show particularized harm. Plaintiffs included 10 families from Fiji, France, Germany, Italy, Kenya, Portugal, and Romania, and the Swedish Sami Youth Association Sáminuorra, who sought to compel the EU to make more stringent GHG emissions reductions.¹³ The plaintiffs claimed that the EU’s emissions reduction target was insufficient to avoid dangerous climate change and threatened their fundamental rights. The EU General Court dismissed the case, reasoning that the plaintiffs did not have standing to bring the case under EU law because climate change affects every individual in one manner or another. EU case law on standing, however, requires that plaintiffs are affected in a way “peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually.”¹⁴ This case is currently on appeal.

3. Private Citizens in Foreign Jurisdictions in Europe and New Zealand

There have also been private citizen suits brought in foreign jurisdictions where standing requirements have been impliedly met because the suit procee...

Índice

• Front Cover
• Title Page
• Copyright Page
• Contents
• Figures and Boxes
• Forewords
• Preface
• Acknowledgments
• Abbreviations
• Executive Summary
• Introduction
• Part One. Rights-Based Litigation Against Governments
• Part Two. Permitting and Judicial Review
• Part Three. Cases Against Private Entities
• Part Four. Adaptation
• Part Five. People Who Are Vulnerable to Climate Change
• Part Six. Transboundary Litigation
• Conclusion
• Glossary
• Back Cover