Environmental advocacy group Stand.earth accused the Vancouver-based apparel company of greenwashing in a “first-of-its-kind complaint” submitted to the French Directorate General for Competition Policy, Consumer Affairs and Fraud Control (DGCCRF) days before the Olympics Games opening ceremony in Paris.

Stand.earth has called on the French regulator to investigate Lululemon’s “vague, disproportionate and ambiguous” environmental claims which, the green group said, constitute misleading commercial practices. In response, the company told Climate Home its publicity does not misrepresent its operations.

Through its “Be Planet” campaign unveiled in 2020, Lululemon tells customers that its “products and actions avoid environmental harm and contribute to restoring a healthy planet”.

A screengrab from Lululemon’s sustainability webpage

But the company’s latest impact report shows that emissions from Lululemon’s full supply chain – known as Scope 3 – nearly doubled to 1.2 million tonnes of carbon dioxide between the campaign’s launch and 2022. That’s equivalent to powering 300,000 gasoline cars for a year.

Stand.earth’s complaint said Lululemon’s emissions are set to grow even further as it tries to hit a goal of doubling sales by 2026.

“Lululemon customers worldwide deserve to know the true impacts of the company’s climate pollution, not the greenwashed version it uses to sell products,” said Stand.earth Executive Director Todd Paglia.

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Earlier this year, Stand.earth filed a similar complaint against Lululemon in Canada that resulted in the country’s Competition Bureau opening a formal investigation into the retailer’s use of environmental claims. A separate complaint accusing Lululemon of greenwashing was brought in early July this year by a private citizen in the US District Court for the Southern District of Florida.

A spokesperson for Lululemon said that Be Planet “is not a marketing campaign” but “a pillar” of the company’s impact strategy, and that the firm is confident the statements it makes to the public accurately reflect its impact goals and commitments.

“We are taking direct action and are committed to collaborating with industry partners to help address supply chain impacts on climate change,” the spokesperson added. “We welcome dialogue and remain focused on driving progress.”

Rising revenues, rising emissions

Lululemon is one of the world’s fastest-growing retailers of athletic apparel, with net revenues rising 19% to $9.6 billion in 2023. The company, which has more than 700 stores in 20 countries, is the official clothing provider for Team Canada at the Olympic Games whose opening ceremony takes place in Paris this Friday.

According to the International Olympic Committee (IOC), the Paris 2024 Games are targeting a 50 percent reduction in carbon emissions compared to the average of the London Olympics in 2012 and Rio de Janeiro in 2016, including Scope 3 emissions such as from spectator travel. This means Paris 2024 will offer the first Olympic Games aligned with the Paris Agreement on climate change, the IOC says.

View of Lululemon name above its retail store in the SoHo neighborhood of Manhattan, New York, NY, August 2, 2023. (Photo by Anthony Behar/Sipa USA)

Lululemon, meanwhile, has committed to reaching net zero emissions across its supply chain by 2050 through a target validated by the Science Based Targets initiative (SBTi), widely seen as the gold standard in corporate accountability.

But the company has come under intense criticism from green advocates over its climate and environmental impacts caused by energy-intensive production, high consumption of natural resources like water and long-distance shipping of items around the globe.

Four-fifths of Lululemon’s manufacturers in 2022 were located in countries that are highly-dependent on fossil fuels like Vietnam, Cambodia, Sri Lanka and Indonesia. The materials most commonly used by Lululemon in its clothes – polyester and nylon – are themselves produced from fossil fuels, according to the Stand.earth complaint.

EU greenwashing crackdown

The environmental group said the case will mark the first test of the French regulator’s readiness for a wave of new European greenwashing legislation.

The European Parliament approved a new directive in January requiring member states to introduce stricter rules surrounding the use of sustainability claims by companies and banning certain practices.

European lawmakers are currently working on a further piece of legislation that aims to define what kind of information companies must provide to justify their green marketing in the future. In its current form, the proposed regulation would require sustainability claims to be based on scientific evidence and checked by an independent and accredited verifier.

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The so-called “Green Claims” directive is currently going through a negotiation process between the European Parliament and the European Council – which brings together EU leaders – before a final text is agreed.

“For decades, companies have faced no consequences for deceptive practices aimed at misleading the public about their environmental and climate justice impacts,” said Stand.earth’s Paglia. “However, we’re now seeing a rising interest in holding these companies accountable for their claims, and a crackdown is beginning to happen from Europe to North America.”

(Reporting by Matteo Civillini; editing by Megan Rowling)

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On June 20, the Supreme Court in London ruled that, in deciding whether to approve a new oil well in Horse Hill in southern England, the authorities must consider the greenhouse gas emissions from burning the oil, not just the much smaller volume of emissions from getting the oil out of the ground.

Announcing what has been called the “Finch ruling”, Judge George Leggatt said: “The emissions that will occur on combustion of the oil produced are ‘effects of the project’ because it is known with certainty that, if the project goes ahead, all the oil extracted from the ground will inevitably be burnt, thereby releasing greenhouse gases into the Earth’s atmosphere in a quantity which can readily be estimated.”

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The ruling has already helped campaigners challenge a planned coal mine in Cumbria in the north of England, set to provide fuel for steel-making. The UK’s new Labour government said last week that the previous Conservative government had made an “error in law” when approving the mine and withdrew support for the mine’s developer in a separate court case being heard this week.

Campaigners against the Cumbria coal mine oppose bringing “zombie” coal back from the dead on July 16, 2024 (Photo: Friends of the Earth)

Speaking during a break in that case, Friends of the Earth lawyer Katie de Kauwe said the Finch ruling had strengthened the green group’s legal argument against the coal mine. The mine’s developer – which is still defending the case – did not assess the emissions from burning the coal and, in the wake of the Finch ruling, “we believe it’s very clear that was unlawful”, she told Climate Home.

The ruling is likely to resonate beyond the UK, she added, because it concerns regulations that are derived from European Union (EU) law. Although the UK has left the EU, many of its laws remain similar.

Greenpeace Norway campaigner Halvard Raavand said his colleagues had “a small celebration” in their Oslo offices when the Finch ruling was handed down, popping bottles of alcohol-free champagne. “It’s highly positive,” he said. “We’re very, very relieved – it shows it’s possible to take on fossil fuels and win.”

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Like the UK, Norway is not an EU member but bases much of its law on that of the bloc. Greenpeace Norway is challenging in court its government’s approval of three new oil and gas fields, arguing that they failed to properly consider the climate impact from burning the fuels – known as scope 3 emissions.

Raavand said that, while Norway and the UK’s national courts are not related, Norwegian judges are likely to consider the UK’s judgement as a precedent. “Other courts across Europe might look to each other too,” he said.

Gina Gylver, head of Natur og Ungdom (Young Friends of the Earth Norway), and Frode Pleym, head of Greenpeace in Norway in Oslo District Court on November 28, 2023 (Photo: Rasmus Berg/Greenpeace)

Over in Amsterdam, Dutch Friends of the Earth campaigner Sjoukje van Oosterhout also celebrated the Finch ruling. “This verdict sets an important precedent,” she told Climate Home. “Judges worldwide will be looking at this.” She said it could boost campaigners’ legal challenge to Dutch company One Dyas’ plans to drill oil in the Wadden Sea, part of the North Sea.

Climate law professor Harro van Asselt said the UK ruling was “important” and “may well have implications for EU member states considering licensing fossil fuel projects”. He added that judges had made similar rulings in Australia and Norway in the last few years – although the Norwegian case, which influenced the Finch ruling, is under appeal.

While its ripple effects will be strongest in the EU and countries with similar laws, van Asselt said he would not exclude the possibility of the Finch ruling influencing court judgements elsewhere, in particular in common-law countries like Australia. Common law is a legal system that evolves based on judges’ rulings, generally found in former British colonies like the US, Canada and New Zealand.

De Kauwe of Friends of the Earth added that the Finch ruling could influence environmental impact assessments across the world.

Most of the oil and gas being extracted in Europe (red) or discovered, or under development (blue), is in the North Sea (Picture: Global Energy Monitor/Screenshot)

The recent change in government in the UK is also likely to hamper new fossil fuel production projects in the country. Keir Starmer’s Labour Party was elected on a manifesto promising to ban the method of gas extraction known as fracking and not to issue new licenses to explore new oil and gas fields or grant new coal mining licenses.

Gareth Redmond-King is the international lead at the Energy and Climate Intelligence Unit advocacy group. He told Climate Home that, at last year’s COP28 climate summit, British politicians heard from Global South government negotiators that politicians in their countries had cited the UK’s decision to issue new North Sea oil and gas licences as justification for pursuing their own fossil fuel exploration. That excuse has now been taken away, he said.

“Leadership works both ways,” he added. “The precedent set by this [Labour] decision makes it harder for fossil fuel companies to justify drilling in other countries. The UK is now the first G7 country to have pledged to put a moratorium on new exploration. That’s a big step.”

(Reporting by Joe Lo; editing by Megan Rowling)

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In a statement, a gathering of EU ministers called the Council of the EU said the decision “unlocked the process of modernisation of the Energy Charter Treaty (ECT) for its non-EU contracting parties”.

The compromise allows the EU as a body to withdraw from the treaty, while individual EU member states can stay in and approve the green reforms at a conference due to take place this year, if they wish.

The ECT currently allows all energy companies – including coal, oil and gas firms – to sue governments over climate and other policies they see as a threat to their current and future profits.

The proposed reforms to modernise the ECT, which are due to be voted on in November, would make it easier for ECT countries to prevent the treaty being used as a basis for lawsuits involving fossil fuel assets that are affected by green economy measures.

However, with several European countries already filing their notice to leave the ECT, it is unclear whether a sufficient number of EU states will stay in the treaty long enough to get the reforms approved. As part of today’s EU Council agreement, the EU confirmed it would leave the treaty.

Other ECT member states, including Japan and Kazakhstan, only grudgingly agreed to back the reforms under pressure from the European Commission.

For the ECT “modernisation” proposal to be adopted, none of the treaty’s member governments – now numbering 49 – must vote against it at November’s conference. Then three-quarters of ECT members need to ratify the reforms for them to take effect.

If the reforms fail, the ECT’s members across Europe and Asia will be unable to remove its protection for fossil fuel investments and – due to a 20-year sunset clause – even EU countries that have left would be exposed to lawsuits for that period.

Post-Soviet treaty

The ECT was conceived in the 1990s to boost investment flows between Western and post-Soviet countries. But its provisions to deter states from grabbing private assets have since been used by energy companies to fight back against climate policies.

In 2020, a British oil and gas company sued Slovenia over what it called “unreasonable” environmental protections”, while German energy company Uniper threatened to sue the Dutch government for €1 billion ($1.1bn)  over its coal phase-out plans.

In lawsuits brought under the ECT last November, British oil company Kelsch is suing the EU, Germany and Denmark for at least 95 million euros ($102m) over a windfall tax on energy firms.

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The European Commission reacted to these and other cases by attempting to remove fossil fuels from the list of investments protected by the ECT – with the aim that it would apply only to clean energy assets.

For two years, efforts by EU negotiators were repeatedly blocked by Japan and Kazakhstan. But in June 2022, a “flexibility mechanism” was agreed that would allow ECT states to end protection for fossil fuels, as long as no other ECT state objected.

Europe divided

Despite European Commission negotiators finally winning this right, EU member countries were divided on how to apply it.

Governments like France, Spain and Luxembourg wanted to immediately end protection for fossil fuel investments but faced push-back from several Eastern European countries.

They agreed a compromise to stop protection for new fossil fuel investments but to continue it for existing investments for ten years – a decision that angered climate campaigners.

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Friends of the Earth’s Paul de Clerck said at the time it would “lock the EU in fossil fuel investment protection” for a decade.

Despite this agreement, by the time the annual ECT conference came around in November 2022, EU governments no longer unanimously backed the reforms the European Commission had negotiated, and so they were shelved.

Locking in Asian fossil fuels

The EU’s stalling on the reforms drew an angry response from then head of the ECT secretariat, Guy Lentz of Luxembourg.

In a letter to the leader of the European Parliament in February 2023, he warned that if the EU withdrew as a bloc before approving the modernisation, it would amount to “an express prohibition” for other ECT members to better align with the Paris Agreement on climate change.

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He added that failure to agree reforms would essentially allow fossil fuel companies to sue EU states for longer because of an existing 20-year sunset clause, which means energy companies can bring lawsuits against governments for two decades even after a country leaves the treaty.

EU states wanted to neutralise this sunset clause by agreeing a side deal between themselves not to apply the treaty. But Lentz said these attempts “may not provide the expected legal certainty”. Campaigners accused him of “bluffing”.

Numbers game

EU countries then continued to debate among themselves whether to stay in or leave the ECT and – if they withdrew – whether to modernise it before exiting.

Despite the ongoing talks, France, Germany and Poland officially left the ECT in December 2023. Luxembourg and Slovenia will leave in June and October 2024 respectively. Portugal, the UK, Spain and the EU will leave next year.

This debate was resolved today, with EU states’ ministers agreeing to a compromise, brokered by the Belgian government. Governments that want to can stay and support the modernisation, but the EU itself can start process of exiting right away.

Belgian energy minister Tinne Van der Straeten said her government had “worked tirelessly to break this complex deadlock and found a balance acceptable and useful to all”.

The deal essentially makes the reforms contingent on timing and EU countries’ commitment to reform.

By November, after Luxembourg and Slovenia exit, there will be 47 ECT member states, including 22 from the EU. Eleven more – including the United Kingdom and Switzerland – are in Europe but not in the EU. Nine others are in Central Asia and three in the Middle East, with Japan and Mongolia the remaining two.

E3G analyst Eunjung Lee said ECT modernisation “is still uncertain” but added “with the EU Council decision today, it is probable that the modernisation might pass, particularly if the voting takes place via correspondence”.  

The ECT approved this option in October 2022. It means the conference’s chair sets a deadline by which any objections should be sent in.

“This will make things easier than voting at a conference, because unless there is a clear objection, the modernisation will be adopted”.

But even if the reform is approved, Lee said the ratification by three-quarters of countries “could take forever”.

De Clerck of Friends of the Earth agreed, saying “it is unclear if the reform would ever be ratified”.

(Reporting by Joe Lo; editing by Megan Rowling)

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Conservationists have challenged the road construction project in the East African nation’s courts since 2009, arguing it threatens the region’s rich ecosystem and wildlife. But in January, President William Ruto declared his government would proceed with the works, a decision critics said undermined his climate-friendly image on the global stage. 

The road – now a rough dirt track punctuated with mounds of elephant dung – dissects the Aberdare Forest in central Kenya, cutting through an expanse of dense woods mingled with thick bamboo and colourful alpine vegetation. It also crosses the mountainous Aberdare National Park, a haven for wildlife including lions, antelope and elephants. 

The government wants to widen and tarmac the picturesque road to connect the two agricultural counties of Nyandarua and Nyeri, which it says would reduce local travel time and the cost of farm produce while boosting tourism. 

Environmentalists argue that the potential negative consequences for the forest, biodiversity and climate change far outweigh the purported benefits.   

“I don’t feel that this is what we want to offer to the Kenyan people in terms of connectivity,” Christian Lambrechts, executive director of conservation trust Rhino Ark, told journalists during a trip to the Aberdare Forest in Nyeri County.  

“We feel that this road is not justifiable from a socioeconomic standpoint. It will cut the Aberdare ecosystem into two, and lead to road user-wildlife conflicts.”   

Rhino Ark Executive Director Christian Lambrechts addresses journalists in Nyeri County, Kenya, during a media tour of Aberdare Forest and National Park on February 29, 2024. (Photo: Joseph Maina)

Threat to wildlife and water

In March, the East African Wild Life Society – in response to Ruto’s decision to press ahead with the project – filed a fresh petition to a local court in Nyeri. It ordered the road’s construction to be put on hold, pending a hearing in early June. 

Conservationists are calling for the government to upgrade an alternative road instead, which largely skirts around the forest, saying it will still cut travel time while protecting wildlife and the Aberdare ecosystem that is vital for the water cycle. 

Enock Ole Kiminta, CEO of KeNAWRUA, a national organisation bringing together local water user associations, told Climate Home that expanding the Ihithe-Ndunyu Njeru road in the Aberdare Forest would destroy almost 400 hectares of indigenous forests and 327 water springs. 

It would also negatively impact close to 70 percent of local biodiversity, including endangered birds and animals, and elephant breeding areas, he added.   

“And yet the president appears to be saying, ‘To hell with you – go to court. We don’t care what the courts will say; we’ll still go ahead and do it’,” Kiminta said, before the latest suspension of the project.    

A scene in the Aberdare National Park, central Kenya, pictured on March 1, 2024 (Photo: Joseph Maina)

In January, the National Environment Management Authority approved the road’s construction in a surprise move, after earlier opposing it, and issued a license for the roadworks to the Kenya National Highways Authority (KeNHA).   

It did, however, give instructions to reduce the road’s width from 40 metres to 25 metres in sections traversing the Aberdare Forest and the Aberdare National Park.  

On a tour of the region that month, Ruto asked a local crowd if they wanted the road’s expansion to proceed or to wait for the court’s final decision. After gaining their backing, Ruto instructed government officials to allocate funds to push ahead immediately.   

Neither KeNHA nor the Kenya Wildlife Service responded to requests for comment for this article.  

International accolades  

Kenyan climate policy experts told Climate Home the Aberdare case symbolises a wider disconnect between Ruto’s vocal support for greater climate action on the global stage and decisions by his government that threaten natural ecoystems and carbon sinks at home.   

Ruto has pushed for more climate finance for the African continent and hosted the African Climate Summit last September in Nairobi, which secured $23 billion in funding for green projects for the continent.  

Last November, he made it onto Time Magazine’s list of the 100 most influential leaders driving business to real climate action. 

He also rolled out an ambitious plan in 2022 to plant 15 billion trees in Kenya by 2032, in a bid to reach 30% tree cover, with all ministries urged to allocate funds for the initiative.  

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“His right hand doesn’t know what his left is doing,” said Kiminta. “He’s not being honest when he’s out of the country speaking all about climate change in rosy terms and doing something different on the ground.”   

While attempting to plant billions of trees, the Kenyan authorities have also been dishing out permits to timber dealers, Kiminta added. 

According to the Global Forest Watch monitoring service, tree loss in Kenya increased to 11,000 hectares in 2023, of which about 10,000 hectares was natural forest. That rise followed a two-year decline in 2021 and 2022, when the country recorded its lowest deforestation levels since 2001. 

Failed effort to lift logging ban  

The Aberdare row is not the first time Ruto has pitted himself against the justice system over decisions involving forests.  

Last July, less than two years after coming to power, he unilaterally lifted a six-year logging ban in the country’s forests, saying it would benefit local economies – sparking a legal backlash.  

The Law Society of Kenya (LSK) petitioned against the move, saying it disregarded the crucial role forests play in mitigating climate change, preserving biodiversity and safeguarding vital ecosystems. 

“It may be for lack of vision, foresight, or even commitment to sustainable development, but it is by all means a blow to Kenya’s environmental conservation efforts and international standing,” wrote Faith Odhiambo, the current LSK president, in a post on Twitter.   

The LSK argued the public had not been involved in the process leading to the decision to lift the ban, as stipulated in the constitution – and in October succeeded in its push for the Environmental and Lands Courts to void the president’s directive.  

Farmers tilling land cleared from the forest in Kinale on March 7, 2024 (Photo: Joseph Maina)

Indigenous rights 

Another row erupted last year over the Mau Forest Complex in Kenya’s Rift Valley, following an effort by the government to evict indigenous communities who have resisted such attempts for years.   

The evictions are part of an official strategy to protect Kenya’s principal water catchment areas, with speculation the latest round may also have been tied to a deal with UAE-based firm Blue Carbon to generate carbon credits for use under the Paris Agreement on climate change. 

The Mau – Kenya’s largest forest – has been the theatre of drawn-out conflict between the government and forest communities, particularly the Ogiek, a minority ethnic group that lays claim to the forest as its ancestral land.  

The African Court on Human and Peoples’ Rights determined in 2022 that the state had violated the Ogiek’s rights over a substantial period and directed it to adopt appropriate measures to prevent the recurrence of abuses.   

But in a surprise twist last October, the government embarked on another forceful eviction of forest communities, including the Ogiek.    

Damaris Bonareri, an advocate of the High Court of Kenya and senior programme advisor for legal affairs at the Kenya Human Rights Commission, told Climate Home the Ogiek people are protected by the constitution and the African Charter on Human and Peoples’ Rights. 

“According to our constitution, the Ogiek have a right to be in that forest. The president is wrong,” she added, noting that Ruto has spoken about the country’s judiciary in ways that could turn public opinion against it. 

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The president has publicly defended his green agenda, and often ties climate change and its causes to the extreme weather hitting the country, including torrential rains that have caused severe flooding and landslides in recent weeks, killing around 230 people. 

“We must be careful on environmental issues,” Ruto told a political rally in March in Kericho, one of four counties covered by the Mau Forest, stressing that his administration would not permit people to graze animals or cultivate crops in forests. 

“You have heard about climate change. Kenya was almost destroyed by adverse weather conditions just the other year and it was because of environmental degradation,” he said.

(Reporting by Joseph Maina; editing by Megan Rowling)

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In a landmark judgment issued on Tuesday, the European Court of Human Rights upheld a complaint brought by more than 2,000 older Swiss women, saying their government had violated the right to respect for family and private life under the European Convention on Human Rights (ECHR). 

It ruled that Article 8 of the ECHR, which refers to the right to a private and family life and home, “encompasses a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life”.

Anne Mahrer, co-president of the Swiss KlimaSeniorinnen group that brought the case, said the ruling is a “landmark in the struggle for a liveable climate for everyone” as “the ECHR has now confirmed that climate protection is a human right”.

The decision is likely to encourage other campaign groups to bring cases against governments that are parties to the ECHR. This includes all European Union states, the United Kingdom, Norway, Turkey and some Central Asian states. A number of climate lawsuits had been adjourned at the court pending decisions in this and two other cases ruled on this morning. 

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Climate litigation is a growing trend around the world, and courts have previously linked climate with human rights violations. But this is the first time an international court has ruled on whether climate change infringes human rights.

Johan Rockström, director of the Potsdam Institute for Climate Impact Research, said heatwaves, droughts, floods and forest fires are already threatening human lives today, and will worsen as climate change intensifies, making it urgent for states to take action to reduce planet-warming emissions.

“Climate lawsuits can put pressure on governments to increase their climate policy efforts and thus advance diplomatic negotiations,” he said in a statement after the ruling.

Swiss seniors

The KlimaSeniorinnen Schweiz, an association of older women, argued that those it represents are particularly vulnerable to climate change and presented scientific evidence showing that older people – particularly women – are more likely to die during heatwaves. They wanted the Swiss government to do more to meet the tougher 1.5C warming goal it signed up to in the Paris Agreement. 

The Swiss government had agreed that rising temperatures were harming people’s health – but denied that the KlimaSeniorinnen should be treated as victims under the law and said the link between its actions and their suffering was “too tenuous and remote”. 

It maintained that some of the claimants – several of whom were over the age of 80 and some of whom had died since the case was first filed – were unlikely to be alive by the time the global temperature rise breaches the 1.5C threshold. 

KlimaSeniorinnen Schweiz activists outside the courtroom in Strasbourg 9/4/24 (Photo: Global Legal Action Network)

On Tuesday, the 17-judge panel ruled that there were critical gaps in Switzerland’s attempt to put a domestic climate regulation framework in place.

It said Swiss authorities had failed to quantify how they would cut national greenhouse gas emissions, through a carbon budget or otherwise, and had failed to meet past emission reduction targets.  

While recognising that states have wide discretion in setting their own laws and developing measures to cut national emissions, the court said Swiss authorities had not acted quickly or decisively enough. 

The court did not say what Switzerland should do to solve the problem, leaving it to the Council of Europe’s Committee of Ministers to come up with a solution.

The judgment, which follows hearings last year, cannot be appealed. 

Sébastien Duyck, human rights and climate campaign manager for the Center for International Environmental Law, said the decision has implications “way beyond Switzerland” because all members of the Council of Europe have the same human rights obligations.

Outside of Europe, he said it would also influence how other courts interpret the human rights obligations of states on climate action. 

Two failures

The court in Strasbourg ruled on two other climate-related lawsuits on the same day. 

One, brought by former French mayor and current member of the European Parliament Damien Carême against the government of France, was deemed inadmissible because he no longer lives in France and could not show that he was a victim. 

19-year old Portugese applicant Sofia Oliveira in the court room in Strasbourg 9/4/24 (Photo: Global Legal Action Network)

It also threw out a case brought by six Portuguese young people against 32 countries, including all EU member states, Norway, Switzerland, the UK and Turkey.

The judges ruled that the plaintiffs could only bring a case against their home country of Portugal, striking out their case against other states. But action against Portugal was not allowed to proceed at the European level because legal avenues in Portugal had not been exhausted.

Although she was disappointed that her lawsuit was not successful, 19-year-old Portuguese applicant Sofia Oliveira expressed solidarity with the Swiss women. “Their win is a win for us too, and a win for everyone,” she said.

This article was amended on April 11 to clarify details of the European court’s ruling. The original said the European Court of Human Rights ruled that the Swiss government had violated the Swiss womens’ right to life as well as the right to respect for private and family life. This has been corrected to remove right to life.

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Activists have been protesting against this for years, and now we’re seeing the fight spill into courtrooms. In the face of climate breakdown, civil society is sending a clear message: governments that continue to use taxpayers’ money to fund fossil fuels should expect a lawsuit.

Litigation has the power to make or break fossil fuel expansion. With more than 2,000 cases filed across the globe since 2017, climate litigation has, so far, focused on the shortcomings of government or company policies, challenging inadequate emissions reduction targets or reparations linked to climate damages. Today, we’re seeing a new wave of climate litigation focused on institutions that channel public finance towards fossil fuels – with recent lawsuits in Australia, the UK, Mozambique, Brazil, South Korea and beyond.

These lawsuits allow citizens to take back control over their public finances and force public financial institutions – whose investments are notoriously opaque – to become more transparent. One critical step governments can take to avoid such lawsuits is to live up to their commitments and come to a global agreement on oil and gas export finance restrictions at an Organisation for Economic Cooperation and Development (OECD) meeting coming up in mid-March.

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The UK, Canada and EU already tabled a proposal for such restrictions which, with sufficient support, can succeed in limiting public finance for fossil fuels. This would free up billions of dollars that can be reinvested in reliable, affordable and secure renewable energy, efficiency measures, and facilitating a just transition.

To achieve this, getting the US on side is key, after which remaining OECD members will likely follow. If President Biden is serious about tackling climate change, it’s vital that he backs strong measures to stop international finance for fossil fuels.

Despite the US, as well as several G20 countries and major multilateral development banks (MDBs), committing to end international public finance for fossil fuel projects by the end of 2022, they continue to pour billions of dollars into international fossil fuel projects. Data also shows that far more public money goes into fossil fuels than renewables or energy efficiency measures.

G20 governments and MDBs provided at least $55 billion for fossil fuels each year from 2019-2021, while allocating only $29 billion to renewables. Bankrolling these toxic industries is fundamentally incompatible with limiting global heating to 1.5C, which, according to the International Energy Agency, requires an immediate stop to investments in new coal, oil, gas and Liquefied Natural Gas (LNG) infrastructure.

State support for gas exports

A crucial part of this fight is holding Export Credit Agencies (ECAs) and similar development institutions accountable. ECAs are government-owned or controlled institutions that provide financing, often at subsidised rates, to large infrastructure projects around the world. ECAs are the world’s largest public financiers of fossil fuels, providing seven times more support for fossil fuels ($34 billion) than clean energy projects ($4.7 billion) between 2019 and 2021.

Without government-backed finance, these projects may not otherwise go ahead. This is especially true for the expansion of more than 80% of new LNG exports over the last decade. While President Biden’s recent announcement of a pause in approvals for new LNG export terminals in the US is welcome, we need to make much more rapid progress to stay within safe planetary limits. A crucial part of this fight is holding ECAs to account and governments to comply with international law.

Civil society groups are turning to the courts. The NGO Jubilee is suing Export Finance Australia and the Northern Australia Infrastructure Facility for failing to adequately report the environmental effects and climate impacts linked to their financing activities, which play a crucial role in determining how ECAs disclose relevant information.

Last year, Friends of the Earth UK took the UK’s ECA to court over its investment in a major LNG project in Mozambique. Friends of the Earth argued that the $1.15 billion in export finance support was unlawful, inconsistent with the latest science, and incompatible with the Paris Agreement. Although the court ruled in favour of the ECA, the case exerted enough pressure to stop funding for new overseas fossil fuel projects. Without the publicised court battle flagging the issue for the UK public and policymakers, this result may never have been achieved.

In Brazil, the human rights NGO Conectas sued the Brazilian Development Bank for failing to assess the negative climate impacts of its investments. Similarly, South Korean ECAs were challenged over the funding they provided for the Australian Barossa gas pipeline project, which would run through a protected marine park, forcing the financiers to review the necessity of LNG imports, as well as their environmental impacts.

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At COP26, 34 governments, including a majority of OECD members, signed up to the Clean Energy Transition Partnership (CETP), pledging to end international public finance for unabated fossil fuels by the end of 2022. Despite this, governments are failing to keep their promises and continue to fund international fossil fuel projects.

The Jubilee case comes at a time when Australia announced its commitment to the CETP – we now need to see policies follow commitments. Put simply: when governments make promises, they need to keep them, or the courtroom awaits.

Maria Alejandra Vesga Correa is a legal officer in the global public finance team at Oil Change International. Leanne Govindsamy is programme head for corporate accountability and transparency at the Centre for Environmental Rights. Lorenzo Fiorilli is a lawyer working on public finance, energy markets and competition with ClientEarth.

The post When governments fund fossil fuels, it’s time to take them to court  appeared first on Climate Home News.

While the industry has faced legal backlash in the past, the dramatic proliferation of these cases may spell disaster for major airlines.

It’s not hard to see why the aviation industry has provoked the ire of climate activists. Flying is responsible for a staggering 5% or so of human-induced global warming and its climate impact is still growing at a rate far greater than almost any other sector.

In this context, a profusion of “green flying” and “sustainability” advertising campaigns has turned the industry into an emblematic example of the debate between growth and sustainability.

Why greenwashing?

The rise in greenwashing litigation can in part be attributed to the relative ease with which cases can be brought. It’s simply a lot easier to attack an airline’s advertising compared to other activities that might be targeted by strategic climate litigation.

Consumers can use legal mechanisms such as commercial practice or consumer protection regulations, as happened in a recent greenwashing complaint to the European Commission filed by consumer groups in 19 countries against 17 airlines.

It’s an effective form of climate action due to the power exerted by advertising on public perception and social norms. The UN’s Intergovernmental Panel on Climate Change (IPCC) has underscored the importance of reducing demand for flying in the first place, something significantly hindered by adverts that downplay its environmental impact.

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A report by Greenpeace and think tank the New Weather Institute claimed that in 2019 airline advertisements influenced 34 million tonnes of CO₂ equivalent emissions worldwide.

This litigation is also buoyed by the demonstrable falsehoods that riddle the sustainability strategies of these companies. The pillars upon which their net-zero strategies rest vary from the broadly ineffective to the dangerously fraudulent and facilitate growth in a sector in dire need of reduction.

Airlines all rely on some form of carbon offsetting – planting trees, for instance, to “offset” the carbon emitted by the planes – or sustainable aviation fuel or carbon capture and storage, in order to “mitigate” their climate impacts.

Common litigation strategies

Thus far, there have been six climate change-related cases brought against major airlines (four in Europe, one in the US and one in Brazil). These cases are buttressed by numerous legal complaints taken through the European Commission or the UK and US advertising standards boards which have already successfully ordered Ryanair, Lufthansa and Etihad to pull ad campaigns.

In each of these three cases, authorities found that terminology like “protecting the future”, “sustainable aviation” or “low-emissions airline” amounted to wilful misleading of consumers and breached advertising regulations.

A recent case taken by Dutch campaigners against airline giant KLM is the most daring example yet. Climate action group FossielVrij(Fossil-free) argues that KLM’s “Fly Responsibly” campaign constitutes misleading advertising under EU consumer law.

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The group asserts that flying responsibly is impossible at present, and that KLM seeks company growth and increased flight sales, when it should be reducing emissions by reducing the number of flights. KLM said its “communications comply with the applicable legislation and regulations”, but has dropped the Fly Responsibly campaign.

Interestingly, this case builds upon a ruling of the Dutch Advertisement Code Commission and indicates the “snowballing” trend inherent in anti-greenwashing litigation, wherein cases rely upon precedent set by previous authorities. With this borne in mind, the recent 19-country complaint by the European Consumer Organisation could provide the strongest foundation to date for future litigation.

Delta Airlines is also facing a class action suit in the US, brought by a California resident who alleges that by marketing itself as a “carbon-neutral” Delta has grossly misrepresented its environmental impact. This points to a growing understanding of the ineffectiveness of carbon offsetting, a net-zero tactic adopted by almost every major airline.

A Delta spokesperson said the case is “without legal merit” as the airline has “transitioned its focus away from carbon offsets” towards decarbonising its own activities. European companies should follow this case closely as American-style “class action” litigation will soon be made possible in the EU.

Does this litigation have teeth?

These cases might result in companies simply pulling their green campaign while maintaining their existing corporate framework and growth models. More promisingly, recent research suggests that any climate-related case taken against a major emitting company will affect the firm’s value (on average by 0.057% following the filing of a case, and by 1.5% following an unfavourable decision).

In reality, these early cases are merely scratching the surface of what’s possible. Once these cases enter the public conversation, a growing understanding of consumer protection is bound to follow.

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In many jurisdictions, such as my home country of Ireland, significant damages can be awarded against companies for misleading advertisement. The UK’s Competition and Markets Authority, which is currently investigating claims of greenwashing in other sectors, will soon be able to fine companies 10% of their global turnover for non-compliance.

While anti-greenwashing litigation might not halt the growth of this industry altogether, it is no doubt an invaluable tool. At its most effective, it can stop blatant profiteering from the climate crisis and force the aviation sector to confront the chimera that is green growth.

Calum Maclaren, PhD Candidate, Climate Litigation, University College Dublin. This article is republished from The Conversation under a Creative Commons license. Read the original article.

The post Why airlines are perfect targets for anti-greenwashing legal action appeared first on Climate Home News.

Yet the 33 countries in the Council of Europe, many of whom are among those most responsible for historic greenhouse gas emissions, fall far short of the drastic measures needed to keep the world from burning.

Six youths from Portugal are challenging that collective failure, in a case that will be heard on 27 September in the European Court of Human Rights (ECtHR).

Claudia, Martim and Marian Duarte Agostinho, and Catarina dos Santos Mota are from the district of Leiria, in central Portugal, which was swept by devastating wildfires in 2017.  The fires came near their homes and left the garden of the Duarte Agostinho family home covered in ash.

Martim was unable to go to school for several days due to the smoke, and all four of them were horrified to know that people died in the fires close to their homes. They and the other two applicants, Sofia and André dos Santos Oliveira from Lisbon, suffer from anxiety about the effects climate change will have on them, on their families, and on any families they may have in the future. The increased heat due to climate change has led some of them to experience trouble sleeping and reduced energy levels, and has limited their ability to spend time or exercise outdoors.

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In the hearing on 27 September, the 17-member Grand Chamber of the ECtHR will be asked to decide whether the abject failure of the members of the Council of Europe to adequately curb emissions violates the youths’ rights to health, privacy and a healthy environment under the European Convention on Human Rights.

The Council of Europe Human Rights Commissioner, the UN Special Rapporteur on human rights and the environment, and the UN Special Rapporteur on toxics and the environment are among those who have intervened in support of aspects of the youths’ claims.

While the six young people reside in Portugal, that fact should not prevent the court from finding the other 32 countries responsible for the harms they have suffered. As the Council of Europe’s Commissioner for Human Rights put it in her intervention in the case: “Given the global, cross-border nature of climate change, state parties cannot allow emission of greenhouse gases to continue without regard for the consequences that this has for the rights of inhabitants of other member states.”  The impact of emissions is not, and cannot be, limited to the emitting country, and emitters must be held accountable for the resulting harms.

A favourable decision in this case would be a pivotal step in the recognition of the human rights obligations of countries in relation to climate change, in particular the responsibility of governments to protect people against the foreseeable impacts of a failure to curb emissions, including impacts that occur outside of their own territory.  It would also likely encourage similar challenges in other regional and national courts.

The scientific facts are clear: governments from major CO2 emitting states are failing to meet their obligations to halt global warming, with devastating consequences for our planet, and for the human rights of present and future generations. The Duarte Agostinho case presents a critical opportunity to hold 33 of them to account.

Linda Lakhdhir is the Legal Director of Climate Rights International 

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The court’s interim charging order – meaning it is not yet final and can be objected to by the debtor – was issued on Wednesday but made public on Friday.

The judgement was issued under the controversial energy charter treaty (ECT) which protects investments in both clean and polluting types of energy.

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Nick Cherryman, one of the lawyers representing the investors, said the step was “only necessary because Spain, a recalcitrant debtor, refuses to honour the judgment against it”.

The investors took Spain to arbitration under the ECT nearly 10 years ago for withdrawing subsidies for renewable energy.

Spain, which relies heavily on foreign energy sources, tried in the early 2000s to lure renewables investors with a programme combining subsidies, tax breaks and guaranteed fixed feed-in tariffs.

But after the 2008 financial crisis, it started altering the framework under which renewables could receive support, which some investors saw as a violation of their legitimate expectations.

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The World Bank’s International Centre for Settlement of Investment Disputes (ICSID) awarded the investors 101 million euros plus interest in 2018, with the award later being registered at London’s High Court.

Spain tried to overturn the award citing sovereign immunity, but the High Court dismissed Madrid’s application in May.

Alongside other European countries, Spain has announced its intention to leave the treaty – although both renewable and fossil fuel investments will remain protected for 20 years under the treaty’s  so-called sunset clause.

The European Commission negotiated reforms to the ECT last year which allowed countries to stop protecting fossil fuel investments while continuing to protect renewables.

But these reforms were rejected by Spain and other EU countries, who decided to leave under the unreformed treaty and try to limit the effects of the sunset clause through agreements with other EU member states.

The post Court says renewable firms can seize Spain’s property after subsidy cuts appeared first on Climate Home News.

Prime minister Katrín Jakobsdóttir told a high-level conference today that there is a “pressing need for an autonomous right to a clean, healthy and sustainable environment” to help address climate change and other environmental crises and pledged to send “a strong message on future challenges” at a forthcoming leaders’ summit.

Recognition of the right to a healthy environment would shift political priorities, say legal experts, and open up the potential for environmental lawsuits at both national and regional levels.

The island nation made promotion of the links between human rights and the environment one of the key aims of its six-month presidency of the Council of Europe, which since 1949 has been tasked with upholding human rights, democracy and the rule of law.

The end of Iceland’s presidential stint in May will be marked by a summit in its capital Reykjavik, where leaders are expected to seriously discuss the prospect of enshrining the right to a healthy environment in law.

Such summits are rare – this is only the fourth to take place since 1993 – and Iceland describes it as a “historic opportunity for the Council of Europe to refocus its mission, in the light of new threats to democracy and human rights”, as well as to support member state Ukraine in its fight against Russian aggression.

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A healthy and sustainable environment is increasingly being seen as a fundamental human right around the world.

Last summer, the UN General Assembly passed a landmark resolution recognising it as a universal right. However, subsequent attempts by the UN Human Rights Council to crystallise this political statement into something more tangible have proved more problematic.

The Council of Europe endorsed a set of guidelines on human rights and the environment in 2022. But it held back from unambiguously restating the existence of the right to a healthy environment, even though all member states had voted in favour of the UN resolution.

Instead, a technical body has been tasked with exploring the need and feasibility of a legal tool to protect the right, and is due to report on its findings in September.

New protocol

The strongest way such a right could be recognised within the Council of Europe would be by adding a new protocol to the European Convention on Human Rights, which would then be enforced by the European Court of Human Rights.

All 46 member states are subject to the rulings of this Strasbourg-based court, which recently heard its first climate-related cases and has scheduled another for the autumn.

The Parliamentary Assembly of the Council of Europe (PACE) is the organisation’s parliamentary arm albeit without the power to make law. It has urged Council of Europe leaders to support a legally binding framework and to place the issue high on the agenda at the Rejkjavik Summit.

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In a letter to the permanent representations of member states of the Council of Europe in Strasbourg, dated 12 April, a coalition of civil society groups also called for recognition of the right “without delay”.

They note that the right to a healthy environment is already recognised by all other regional human rights frameworks, making the European Convention on Human Rights “an outdated exception”.

The groups say recognition of such a right would grant the “greater unity” among European countries that the Council of Europe is mandated to achieve. “Not recognising the right… would signify that the Council of Europe is unable or unwilling to address the most pressing dangers in the 21st century to the rights it must protect.”

Real impacts

Sébastien Duyck, human rights and climate campaign manager for the Center for International Environmental Law, believes some countries are nervous of the European Court of Human Rights’ power.

“Strasbourg is where the rubber hits the road,” he said. “That’s where you have those great international principles on human rights that are converted into something with real impacts on member states.”

He said there were legitimate concerns about how such a right would be implemented, such as the question of what type or scale of ecosystem harm would allow someone to bring a claim.

“But these should be addressed by a negotiating committee,” said Duyck. “If you were to have government structuring a protocol, that’s what they would be doing.”

Iceland is treading carefully on this potentially sensitive issue, and experts say today’s conference is one way in which it is trying to build support for the idea.

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Opposition to idea

Robert Spano, former president of the European Court of Human Rights, who gave a keynote speech, was wary of the idea.

He said it was justified for the international community to “robustly debate” the need for adopting a binding right to a healthy environment.

But he did not think it as “sound policy” to incorporate it into the European Convention on Human Rights, saying climate change is too broad an issue for the court to deal with and suggesting it should remain a political – not a legal – matter.

But Jakobsdóttir maintained that the organisation must follow in the “very important footsteps” of the UN if it is to continue to hold its role as one of the leading human rights institutions worldwide.

Amnesty International said this shows the presidency is putting a big emphasis on the issue.

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Failure at home

Domestically, Iceland is one of 14 members of the Council of Europe, alongside the UK, Germany and Switzerland, not to explicitly recognise the right to a healthy environment in domestic law.

There appears to be public support for the idea, said Jóna Þórey Pétursdóttir, an associate at Icelandic law firm Réttur.

But in 2021, prime minister Jakobsdóttir failed to pass a constitutional reform bill recognising the right. “Hence, the seriousness of the government on the topic can easily be questioned, unfortunately,” she said.

Icelandic MP Andrés Ingi Jónsson of the Pirate Party agreed that the issue remains a “fairly high priority” for Jakobsdóttir, “although she usually adds the caveat that Russia‘s attack on Ukraine is likely to take center stage”.

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Duyck said the war between Russia and Ukraine, both of which were members of the Council of Europe until Russia was expelled last year, had left the alliance “soul-searching” about its fundamental role and looking to reaffirm what its shared values are.

As well as providing a new tool to hold Russia accountable for the damage it is causing in Ukraine, he said, recognising the right to a healthy environment could provide just such a unifying cause.

Duyck believes the right will be recognised among Council of Europe members in one way or another. “The question is, is the [European Court of Human Rights] going to continue to have its creative interpretation of the convention by incorporating the right to a healthy environment more and more explicitly? Or are governments going to actually play the policy-making role that’s expected of them and just tell the court how this should be done?”

The Pirate Party’s Jónsson said the legacy of Iceland’s presidency of the Council of Europe would depend on the strength of the summit’s declarations and how well its results are followed through.

“This is not just the role of a single state,” he said, “but also something that civil society throughout the member states will have to hold their governments to account.”

The post Pressure builds on Council of Europe to put right to healthy environment in law appeared first on Climate Home News.

In a controversial move last year, the European Commission gave gas power plants a ‘sustainable’ label under the EU’s green finance taxonomy, provided they meet a strict CO2 emissions threshold.

Gas power plants will be considered as a “transitional” technology under the EU taxonomy provided they replace existing coal-fired power stations, and “subject to clear limits and phase-out periods”, the EU executive said.

That decision was challenged by four environmental groups – ClientEarth, WWF’s European Policy Office, Transport & Environment (T&E), and BUND (Friends of the Earth Germany).

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The four started legal action in September to stop the inclusion of fossil gas in the bloc’s sustainable finance rulebook, arguing that the legislation clashes with the European Climate Law and does not respect the EU’s obligations under the Paris Agreement.

However, in February the Commission rejected their request, and the NGOs are now challenging this decision by filing a case with the Court of Justice of the European Union. 

Absurd and unlawful?

“Labelling fossil gas as ‘sustainable’ is as absurd as it is unlawful. It goes against the EU’s own scientific advice and fundamentally undermines the credibility of the EU’s climate action. Fossil gas is not clean, not cheap and not a secure source of energy,” said a spokesperson for the four green organisations. 

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The NGOs argue that gas cannot be considered a sustainable source of energy and has a huge impact on climate change as it is a high-carbon source when burnt, while its extraction and transport also lead to the release of methane, a powerful greenhouse gas. 

Including fossil gas in the ‘green’ taxonomy would also worsen the EU’s dependency on imported fossil fuels, exposing EU member states to more price volatility, dependence on producing countries, and supply crises in the future, they add. 

“We’re taking the Commission to court in the hope of restoring some credibility to the Taxonomy and avoiding this huge risk to the climate and people’s energy security,” the spokesperson said. 

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Contacted by Euractiv, a Commission spokesperson said the EU executive “takes note of the legal action undertaken by several NGOs” but prefers not to comment on the substance of the case “before EU Court judgments are delivered”.

A hearing at the General Court is being scheduled for the second half of 2024, with a judgement expected to be released in 2025.

Nuclear challenged too

A separate lawsuit at the Luxembourg-based European Court of Justice against the inclusion of gas and nuclear in the taxonomy regulation will also be filed by Greenpeace on Tuesday.

In September, Greenpeace organisations from eight countries asked the EU to review its decision, but their request was rejected. 

As the lawsuit is being filed on Tuesday, activists from Greenpeace Luxembourg are planning to gather in front of the Court to protest the “green” label for gas and nuclear. 

Unlike gas, nuclear is a zero-carbon technology. But Greenpeace opposes it due to concerns over the disposal of nuclear waste and about safety and cost.

The post Campaigners sue EU for labelling gas sustainable appeared first on Climate Home News.

The two lawsuits, heard today in Strasbourg, accuse the governments of France and Switzerland of breaching the human rights of their citizens by not doing enough to cut national emissions.

It is the first time climate change has come before the European Court of Human Rights, but is unlikely to be the last.

The lawsuits were filed by a former French mayor and a group of Swiss seniors, all of whom argue that their governments have breached their rights to life and to respect for private and family life under the European Convention on Human Rights.

The judgements could set a “pivotal” precedent for climate action, campaigners told Climate Home News, as they could make states take more ambitious climate action as part of their human rights obligations.

International Court of Justice to advise states on climate duties: ‘A turning point for climate justice’

Elders facing extreme heat

In the first case, an association of 2,038 older women called the KlimaSeniorinnen, as well as four individual applicants, argue that they are particularly vulnerable to climate change.

They presented evidence to the court that older people – particularly women – are more likely to die during heatwaves.

The group, which has an average age of 73, first petitioned the domestic courts for action but its case was dismissed.

Switzerland does not dispute that climate change is real and could affect human health. But the government’s legal team told the court its carbon emissions could not be directly linked to the health of older women and said they were not the only ones affected.

Furthermore, it maintained that its existing climate targets and policies are sufficient and said it should not be asked to do more if it was not technically and economically feasible.

Jessica Simor, a lawyer representing the KlimaSeniorinnen, said Switzerland itself had never assessed the fairness of its climate targets and policies, pointing to independent research by Climate Action Tracker that deems the country’s current efforts ‘insufficient’.

Vidéo : Audience Verein KlimaSeniorinnen Schweiz et autres c. Suisse https://t.co/fFghE94vTl | Video: Hearing Verein KlimaSeniorinnen Schweiz and others v. Switzerland https://t.co/LQsm3aMC56#ECHR #CEDH #ECHRhearing pic.twitter.com/JSJASyX5em

— ECHR CEDH (@ECHR_CEDH) March 29, 2023

Switzerland currently aims to reduce domestic greenhouse gas emissions by 34% by 2030, which is lower than its formal international commitment of cutting “at least 50%” of all greenhouse gas emissions by the same date.

In 2021, the Swiss government held a referendum to align its domestic target with the more ambitious 50% cut, but voters rejected it.

Marc Willers, a barrister representing the KlimaSeniorinnen, told the court that blaming the referendum was “plainly a bad argument” and claimed Switzerland was responsible for its violations “irrespective of how they came about”.

The KlimaSeniorinnen want Switzerland to cut its domestic emissions by above 60% below 1990 levels by 2030, which they say is more in line with similar nations and the EU itself.

Willers said Switzerland’s approach undermined global trust and efforts to combat climate change. If a nation as rich and technologically advanced as Switzerland does not do its fair share, he argued, “what hope is there that other countries will step up?”

Climate victim?

In the second lawsuit, against the government of France, the former mayor of the commune of Grande-Synthe argues that he is personally vulnerable because his home is at risk from flooding.

Damien Carême, now a green MEP for France, had also brought a domestic case against France to the country’s top administrative court. In 2021, the court ordered the government to act immediately to meet its climate commitments, or risk potential fines.

But Carême is challenging the French court’s assertion that he is not directly affected by the country’s failure to take sufficient action on climate change.

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The French government contends that Carême should not be considered a victim under the law and asked for the case to be struck out.

Diégo Colas, director of legal affairs at the French foreign ministry, told the court that France had recently enhanced its emission reduction measures and compliance with its objectives was already being scrutinised by the domestic courts.

New cases coming

The 17-judge panel will now consider its ruling, which is not expected until next year.

In the meantime, the court will hear a third climate case, filed by six Portuguese young people against 32 countries, including all EU member states, Norway, Switzerland, the UK, Ukraine and Turkey, which has been scheduled for the autumn.

The group, now aged between 11 and 23, claims that government inaction on climate change discriminates against young people and poses a tangible risk to life. It refers in particular to forest fires that killed more than one hundred people in Portugal in 2017 and which were worsened by climate change.

Gerry Liston, senior lawyer at Global Action Legal Network, which is supporting the Portuguese case, said the lawsuits gave the court “power to direct a major acceleration in European action on the climate crisis”.

Sébastien Duyck, human rights and climate campaign manager for the Center for International Environmental Law, described the hearings as a “pivotal moment” in the fight against climate change and said the resulting judgments would be carefully monitored by governments and civil society organisations around the world.

“They have the potential to set an influential legal precedent that would further confirm that states must take more adequate action against climate change as a matter of their human rights obligations,” said Duyck.

If the court finds human rights have been breached, it could open the floodgates to similar litigation before the European Court of Human Rights and national courts in all member states of the Council of Europe, said Annalisa Savaresi, associate professor in international environmental law at the University of Eastern Finland.

NOTE: Expenses for attending the court hearing were supported by a grant from the Foundation for International Law for the Environment

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At a general assembly meeting in New York today, governments approved a resolution recognising the huge challenge of climate change and calling on the International Court of Justice (ICJ) to provide an advisory opinion on how it intersects with international law.

Ishmael Kalsakau, prime minister of Vanuatu, which led the initiative alongside a group of young people, called the decision “a win for climate justice of epic proportions”.

The Pacific island nation is currently in a national state of emergency after two tropical cyclones devastated the island in the space of just a week.

‘A turning point’

An advisory opinion from the ICJ interprets existing international law rather than creating new legal obligations, and it is not legally binding. But it is highly influential.

Nilufer Oral, a member of the UN International Law Commission and director of the National University of Singapore’s Centre for International Law, said the opinion would “provide clarity and guidance on the legal obligations of states when it comes to climate change, and the legal consequences of failing to act”.

Among other things, it will consider states’ human rights responsibilities and their intergenerational duties.

The resolution marks “a turning point in the pursuit of climate justice,” said Caio Borges, law and climate coordinator at Brazil’’s Institute for Climate and Society.

“The court’s opinion will undoubtedly shape the trajectory of future international climate negotiations and climate litigation at both domestic and international levels,” Borges added.

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Vanuatu’s climate change minister Ralph Regenvanu said there had been “overwhelming global support” for the resolution, which was co-sponsored by the vast majority of UN states. But it took four years to get to this point.

Cynthia Houniuhi was in her final year of law school at the University of the South Pacific in Fiji campus, doing a course on international environmental law, when her classmates began discussing ways of promoting climate justice. One of the ideas on their list was seeking an advisory opinion from the ICJ.

“To be honest, at first I was very hesitant when this idea was being discussed,” said Houniuhi. “I mean, let’s be real here; it was too ambitious. How can a small group of students from the Pacific region convince the majority of the UN members to support this initiative?”

What moved her, in the end, was seeing communities already doing their best to adapt to climate impacts, and watching the advocacy efforts of civil society and her government.

BREAKING: The UN General Assembly has passed by consensus the resolution calling for an ICJ advisory opinion on climate change and human rights pic.twitter.com/XgTF1M4el3

— Pacific Islands Students Fighting Climate Change (@pisfcc) March 29, 2023

“What is the use of learning all this knowledge if it’s not for our people to fight the single greatest threat to their security?” she asked herself. “This was an opportunity to do something bigger than ourselves, bigger than our fears.”

Houniuhi was one of 27 students to form Pacific Island Students Fighting Climate Change, who petitioned their teachers and lecturers about the idea, and crowdfunded 80 Fijian dollars to pay for a banner.

With growing support, they approached the Vanuatu government, which welcomed the idea and galvanised a core group of 18 countries. Houniuhi, who is now studying for a masters in environmental law at Sydney University, said the support shown her group has been “overwhelming”.

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Getting the explicit support of so many nations was the result of a huge diplomatic effort around the world, said ambassador Odo Tevi, Vanuatu’s permanent representative to the UN.

The resulting opinion will undoubtedly be used as a key piece of evidence in the growing number of climate lawsuits against domestic governments. Earlier today, for example, the European Court of Human Rights heard its first two climate cases against Switzerland and France.

But those behind the initiative made a concerted effort to avoid laying blame on states. Oral said the aim should not be to sue states, noting that previous advisory opinions from the ICJ have not sparked a swathe of legal actions.

Experts say it could encourage reviews of national climate plans, and push states to look hard at their domestic targets, aiming for stronger policies to cut emissions and adapt to the impacts of climate change.

“It’s really being able to give… that extra legal incentive for states to understand that they have to take action now. We know from the most recent IPCC report, they have very little time,” said Oral.

Vanuatu took a long look at its own international obligations and last year submitted a more ambitious NDC , which included over 140 commitments on mitigation, adaptation, and loss and damage. “This is exactly the kind of outcome we hoped for from the ICJ’s advisory opinion,” said Regenvanu.

Regenvanu said states might also use the opinion to negotiate a complementary legal instrument like a fossil fuel non-proliferation treaty; an international campaign for such a treaty is rapidly building with the forthright support of Pacific island nations. Or it could add fuel to efforts to add the crime of ecocide to the International Criminal Court’s Rome Statute.

Complementing loss and damage

The ICJ has not been specifically asked to provide an opinion on the highly politicised issue of loss and damage, although the resolution emphasises the urgency of “averting, minimizing and addressing loss and damage associated with those effects in developing countries that are particularly vulnerable to these effects”.

But Regenvanu said it would complement efforts to roll-out loss and damage finance and might affect rules around it are interpreted.

Speaking at the Economist Impact’s sustainability week today, UN Secretary-General, António Guterres said the opinion would help the UN and member states take “the bolder and stronger climate action that our world so desperately needs”.

The court will organise hearings over the next few months, and an advisory opinion will be issued between six and 12 months later.

Pacific island students and other young people are writing a handbook explaining how young people and civil society organisations can contribute to the process, which will be published soon.

The post International Court of Justice to advise states on climate duties: ‘A turning point for climate justice’ appeared first on Climate Home News.

This is a watershed year for climate litigation:​​​​​​ three cases in Strasbourg stand to transform the climate policies of 32 European countries. Their effect could reverberate across the globe.

Hearings for two of these cases will happen on 29 March, with a third due to be heard after the summer. Behind the cases are brave plaintiffs from all ages and backgrounds: Portuguese children and young people, Swiss senior women, and French MEP Damien Carême.

All are desperately trying to protect their present and future from disastrous climate change. In each​ case​, the plaintiffs argue that their human rights are being violated by governments’ failure to tackle greenhouse gas emissions at the pace required to keep temperatures – and themselves – safe.

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The Paris Agreement will be instrumental in all three cases. As one of its architects, I see this as a compelling signal that the landmark treaty is doing its job, especially when states are not.

When scientists, politicians and diplomats designed the Paris Agreement, we relied on the best science and legal advice that 197 countries could offer. ​​​​​​We also heeded states’ preference to decide themselves how they reduce emissions — and designed the Paris Agreement in a way so they could.

But while the Paris Agreement protects countries’ sovereignty over their climate action, it is crucial that they abide by the spirit and objective of the treaty: to limit global warming to 1.5C by mid-century.

In practice, a vast majority of states are not yet acting fast enough, effectively using the design of the Agreement as a means to play “chicken” with the safety of their citizens, something the courts have a clear mandate to dismantle.

Mexico launches global push for geoengineering restrictions

Judges can give scientific facts the force of law. If the ECtHR finds a human rights violation in these cases, it will require governments to remedy it – which will mean speeding up the phase-out of fossil fuels and upping their climate ambition.

It was obvious in 2015 that some states would drag their feet: we knew this and anticipated that the treaty would have to invite external pressure from other areas of law, especially human rights law, to compel countries to act faster​.​

After all, while Paris culminated in a formal agreement among governments, it was largely the fruit of decades of global mobilisation and warnings from scientists, environmental experts, civil society at large, and voices within the business sector. There would be no Paris Agreement without widespread pressure and scrutiny.

Nor are these hearings in Strasb​o​urg coming out of the blue. Climate litigation is advancing everywhere, as courts take stock of their role in protecting citizens from man-made climate impacts. Last year, Brazil’s Supreme Court became the first judicial body to recognize the Paris Agreement as a human rights treaty, giving itself the power to enforce it. There are more than 2,000 climate-related litigation cases underway in the world today, with 80 of them challenging governments.

Governments battle over carbon removal and renewables in IPCC report

Crucially, these rulings can shed light on the evolving role of the Paris Agreement itself. No two legal systems are the same, but an international treaty can serve as reference to any and all, helping the courts to uphold and interpret their mandate.  We always intended the Paris Agreement to play this role as it became integrated into other areas of law at the national, regional and international level.

​​​The ECtHR is specific in that it is only empowered to enforce a single legal instrument, the European Convention on Human Rights. However, it can refer to treaties like the Paris Agreement to interpret countries’ duties to uphold human rights under its own mandate. And the opportunity is great: as its judgments are legally binding, it has the power to compel European countries to significantly accelerate their efforts to reduce emissions.

The window to stay under the safer limit of 1.5C is closing fast. This year could strengthen the Paris Agreement against a backdrop of catastrophic climate impacts all over the planet.

The world is watching: these rulings will have deep, lasting, and transformative consequences for millions today and billions in the future. These brave plaintiffs are standing up for their human rights. Thanks to them, we could all be rewarded.

Laurence Tubiana is the CEO of the European Climate Foundation and, as French climate envoy, played a key role in negotiating the Paris agreement

The post Climate in court: The Paris Agreement’s role in safeguarding human rights  appeared first on Climate Home News.

Seo-kyung is now a 21-year-old adult but the court has still not made any decisions about the case. “As individuals, there is not much we can do that is different from before,” she told a press conference on Monday. “I earnestly hope that the constitutional court can play a role while there is still something that can be done.”

In the three years since the lawsuit was filed, the Korean government and the national assembly have announced a target to be carbon neutral by 2050, passed a climate change law and strengthened the country’s nationally determined contribution under the UNFCCC.

The government is currently working on its first detailed carbon neutrality strategy, as required by the legislation, which is expected to be published at the end of the month.

Vanuatu gathers support for UN climate justice statement

But campaigners are not satisfied. Climate Action Tracker deems the country’s progress “highly insufficient”, saying it lacks the necessary speed and stringency needed to be compatible with Paris Agreement’s 1.5°C temperature limit.

Most of Korea’s emissions come from the energy sector, which is highly dependent on fossil fuels for electricity generation. In 2021, the country was the third largest gas importer in the world, behind China and Japan.

Climate lawsuits

Youth4Climate’s petition in 2020 argued that the Korean government wasn’t doing enough to curb rising global temperatures and to protect their basic constitutional rights, including the right to life and pursuit of happiness, from the effects of climate change.

The group’s lawyers have sent ten further submissions to the constitutional court since, adding new information to their case. Among other things, they drew the court’s attention to landmark rulings in the Netherlands, Ireland, France, and Germany, all of which have recognised government responsibility to address climate change.

Yoon Se-jong, a lawyer for Plan 1.5 and one of the main legal representatives for the Youth4ClimateAction case, says German justices visited their Korean counterparts last November and climate litigation was one of the key topics under discussion.

A further three climate lawsuits have also been filed challenging the constitutionality of the government’s emission-cutting commitments. One, submitted last year, was fronted by a group of small children and what was then a 20-week-old foetus.

Swift ruling

Becoming increasingly frustrated at the court’s silence, Youth4ClimateAction campaigners delivered a letter earlier this week urging it to make a “swift ruling”, which was signed by more than 200 legal professionals from Korea and abroad.

Signatories included Baek Bum-seok, professor at Kyung Hee University and a UN Human Rights Council advisory member, and So Byung-cheon, president of the Korean Environmental Law Association and a professor at Ajou University Law School.

Legal professionals from France, the United Kingdom, the United States, the Netherlands, the Czech Republic and Nepal also voiced their support, including Roda Verheyen, a lawyer involved in Germany’s landmark climate lawsuit.

Sejong said the delay was understandable given the gravity of the issue and the implications the court’s decision could have on Korean policy and law. “But what we are really emphasising is that every month and year we lose is a lost opportunity for litigation that we really, really need. Leaving this question to the political process is not going to be enough.”

Chinese coal boom a ‘direct threat’ to 1.5C goal, analysts warn

Youth climate campaigners filing the case who had initially been buoyed up by the idea of taking legal action were despondent at the press conference.

“When I first learned about the enormous problem of climate change, I felt that I had to do something, and I participated in the climate lawsuit with the hope of making a practical change,” said Oh Min-seo, a 17-year-old from Chuncheon city.

“However, over the past three years, as I witnessed people dying in unprecedented floods and the Soyang River drying up due to the worst drought, my fears about climate change became more tangible, and the feeling of powerlessness has been accumulating in my heart because politics and law don’t seem to exist for our benefit.”

Their legal team seems more optimistic. Sejong noted that abortion was only decriminalised in Korea two years ago only after the constitutional court deemed it was infringing people’s rights.

‘Fundamental obligation’

In December, the National Human Rights Commission of Korea said the government had a “fundamental obligation” to protect human rights from the climate crisis and must actively respond to it. “It is necessary to set higher national greenhouse gas reduction targets and also to set reduction obligations for the post-2030 period to protect the basic rights of future generations,” it concluded.

Lucy Maxwell, co-representative of the Climate Litigation Network, noted that the lawsuit was the first of its kind in East Asia and said it offers “a really important opportunity to clarify the governmental obligations to protect constitutional rights in the face of the climate crisis”.

She said affected communities and even courts in other countries would be looking to the court for a judgment.

The post Lawyers and activists build pressure on Korean court to rule on climate appeared first on Climate Home News.

Countries agreed on a legal framework for governing those remote parts of the oceans, where, far from sight, human activities have often gone unchecked.

Once formally adopted, the treaty will form the basis for the creation of marine protected areas and help reach a goal to protect 30% of the seas by 2030.

That’s all good news albeit the fact environmentally risky deep sea mining, which is governed by its own UN body, will be exempt from the treaty’s environmental assessment framework, Matteo Civillini reports.

The lesser known International Seabed Authority is currently negotiating a mining code that will lay the rules for extracting minerals used in EV batteries from the international seabed.

Campaigners are concerned that environmental safeguards for deep sea mining will be weaker than those of the high seas treaty, turning the exemption into a “get out of jail free card”.

Others remain optimistic the treaty will stitch the patchwork of ocean governance and avoid a two-tier standard: one for the oceans and another for their seabeds.

This week’s stories

• World Bank backs mega dam threatening to displace thousands in Mozambique
• EU agrees diplomatic push for fossil fuel phase out ahead of Cop28
• Vulnerable nations set up alliance to prepare loss and damage action plans
• High Seas Treaty exempts deep-sea mining from stricter environmental rules
• Cop28 boss urges Big Oil to join fight against climate change
• China strengthens role of courts in meeting carbon targets
• Canada sets out green investments guide amid complaints of industry capture

In Mozambique, farmers and fishermen along the lower Zambezi river are concerned international human rights standards may be flouted in the construction of a 1.5GW mega dam.

With backing from the World Bank, the government says the project will help address energy poverty and accelerate a shift to cleaner energy sources.

NGOs estimate the project could displace thousands of families but local people told Climate Home they haven’t been formally informed – let alone consulted – about the plans.

And in China, one of the country’s top courts issued new guidelines encouraging judges around the country to hear climate-related cases that can help implement China’s carbon peaking and neutrality goals.

The unusual legal intervention urges courts to balance the need for development with corporate action when ruling on lawsuits. The move is likely to increase scrutiny on new high-emission projects.

The post It’s high time for the high seas – Climate Weekly appeared first on Climate Home News.

In a significant legal intervention, the Supreme People’s Court issued new guidelines that say judges should balance development and corporate emission reduction when ruling on lawsuits.

The 24-article document gives courts across China the green light to hear cases related to energy conservation and emission reduction, low-carbon technology, carbon trading and green finance, and to promote climate change mitigation and adaptation.

It sets out 11 examples of climate-related lawsuits that judges might encounter, including contractual issues, implementation of carbon emission quotas, air pollution liability and deforestation. The document says courts should focus on the carbon trading market, in particular, which has been the subject of a wide variety of legal disputes in recent years.

China warns of more floods and heatwaves in 2023

Liu Zhumei, chief environmental judge at the Supreme People’s Court adjudication tribunal for environment and resources, told media that the new guidelines are a key step to implementing environmental protection pledges in the report to the 20th National Congress of the Communist Party of China.

This promised to boost low-carbon industries and improve the system for market-based allocation of resources, as well as reduce environmental harms.

“The guideline is also the first judicial document made by the top court to regulate case handling on the carbon peak and carbon,” she added.

‘Dual carbon’ goals

President Xi Jinping recently reaffirmed a pledge that China would peak its carbon dioxide emissions before 2030 and be carbon neutral before 2060, known as the “dual carbon” goals.

But experts say decarbonising the country will be a major challenge.

A recent report by Global Energy Monitor and the Centre for Research on Energy and Clean Air found permit approval, construction and new project announcements for coal in China accelerated “dramatically” last year, with new permits reaching the highest level since 2015. Coal power capacity starting construction in China was six times bigger than all the rest of the world combined.

Central government appears to be supportive of the new projects, the report finds, with the energy regulator aiming to have 165GW of coal power construction starting in 2022-23. Chinese provinces too are expected to focus their energies on a mix of both coal and renewable power in the coming year.

Japan’s ‘green transformation’ would derail the energy transition in Asia

China signalled the continued importance of coal to its domestic energy security in a government work report presented at the beginning of the National People’s Congress annual meeting on Sunday.

However, minister of ecology and environment Huang Runqiu also recently said the development of industries with high energy consumption and emissions, projects in areas with fragile ecosystems and the transfer of projects with high emissions from eastern China to the west of the country would be “highly restricted”, according to China Daily.

Whether the judiciary can temper the country’s coal drive remains to be seen.

Dimitri de Boer, Asia regional director of programmes for environmental law NGO ClientEarth, told Climate Home that the involvement of courts in implementing the dual carbon goals would likely “increase the level of scrutiny on newly proposed high emissions projects, and help to ensure a smooth low-carbon energy transition”.

Proactive role

Climate litigation has been difficult in China because, unlike many other countries, it does not have specific legislation to combat climate change. But the judiciary has signalled a willingness to engage with the issue.

The 2021 Kunming Declaration called on courts to play a proactive role in tackling climate change and encouraged greater coordination of domestic and foreign rule of law.

A judgment on cryptocurrency mining last year was the first time a ruling of final effect explicitly mentioned China’s carbon peaking and carbon neutrality goals, and experts think it is unlikely to be the last.

Lu Xu, senior lecturer in property law at Lancaster University’s law school, said the new guidelines largely summarised what the judicial system in China was already doing but do send a strong signal to the lower courts.

“Guidelines are not law,” he said. “But lower courts will understandably pay attention to all of them. In turn this will create pressure on litigants to accept or accommodate the values of the guidelines, as lower courts would not want to decide cases in blatant defiance to them.”

The post China strengthens role of courts in meeting carbon targets appeared first on Climate Home News.

The students came up with the idea of getting the world’s top court to issue an opinion on states’ legal responsibility for the climate crisis.

The government of Vanuatu backed the idea and now most of the world’s countries have too – although notably not the US, China and many other big polluters.

That means the student-initiated project should get the green light from the United Nations general assembly in the next few weeks and an International Court of Justice advisory opinion will follow.

If the court says governments do have responsibility, that’s something judges across the world will have to take seriously. Bad day to be a US government lawyer.

This week’s stories

• Finance key climate issue for new Nigerian president
• Vanuatu gathers support for UN climate justice statement
• Comment: Japan’s ‘green transformation’ would derail the energy transition in Asia
• IMF warns against ‘protectionism’ in rich world’s green subsidies
• UN sets date for loss and damage talks, risking Asian no-show
• Total escapes court censure over East African oil pipeline
• Greta Thunberg protests wind farm “violating human rights” in Norway
• South Africa tried to weaken corruption safeguards in coal phase out deal, says CEO
• Governments sworn to secrecy on ‘$20bn’ for Indonesia’s energy transition

Nigeria was not among those backing Vanuatu’s bid, but its new president Bola Tinubu is in no doubt where responsibility lies.

On the campaign trail, he described his country as a church rat, trying to avoid eating a holy communion poisoned by the big polluters.

He says he will tell the West that, unless it hands over climate finance, “we are not going to comply with your climate change”.

The West’s responsibility for causing the climate crisis is a matter of fact – but it won’t be Western finance ministers who pay the highest price for climate failure.

Sadly, it will be those Tinubu has just been elected to represent. Nigeria is already suffering flooding, drought and climate-linked armed conflict – and its only going to get worse.

The post Green lawyers get boost – Climate Weekly appeared first on Climate Home News.

Of the 193 United Nations member states, 105 have now supported Vanuatu’s call to request that the International Court of Justice (ICJ) gives an advisory opinion on states’ legal obligation for climate action and the consequences of causing harm.

Nations large and small, including most of Europe, Australia, Canada, Vietnam, Colombia and Bangladesh, are now co-sponsoring the draft resolution, which must be put to the whole UN to approve.

Incredible effort by the #ICJAO4Climate Core Group () and UN member states, after we issued the L doc we had 105 co-sponsors! Appreciate the active engagement here at the UN during consultations, as well as Vanuatu’s diplomatic envoys around… https://t.co/H4WRaKbOpr pic.twitter.com/Nf2OTTID20

— Vanuatu UN (@VanuatuUN) March 1, 2023

Among the nations who have not yet backed the plan are big wealthy economies like the USA, Japan and South Korea, oil and gas producers like Saudi Arabia and big emerging economies like China, India, Brazil, South Africa, Indonesia and Russia.

Student project

It is significant milestone for the plan, which began as a class exercise by environmental law students at Vanuatu’s University of the South Pacific campus.

They put the idea to their foreign ministry, which gathered support from other island nations and has now built an international coalition.

Vanuatu said it had taken a “Herculean team effort” to reach this point, involving active engagement during consultations at the UN, diplomatic envoys around the world, and the advocacy civil society and youth groups.

IMF warns against ‘protectionism’ in rich world’s green subsidies

“Today countries from North America, Latin America, Africa, Northern Europe, Asia and the Pacific have come together to demonstrate that we all share the value of upholding the rule of international law”, said Vanuatu prime minister Ishmael Alatoi Kalsakau Maaukoro.

Vulnerable Vanuatu

Vanuatu, a small island nation in the Pacific, is particularly vulnerable to climate change and has long been at the forefront of efforts to fight it.

News that it had gathered international support for its ICJ resolution came as it was hit by a category 4 cyclone, with another possibly on its way,

“Vanuatu is out of time,” said Kalsakau. “We are doing all we can, yet losing this battle for which we are not responsible. There must be some accountability for the significant harm now being experienced by vulnerable people across the globe.”

Vanuatu expects many more states to confirm their support for the motion in the next few weeks, which may mean it can be adopted without a vote.

State responsibilities

Under the proposal, the ICJ would be tasked with interpreting what international human rights and environmental laws mean for states’ responsibility to act on the causes and consequences of climate change.

It has no enforcement powers and the exercise is not designed to win reparations for victims of climate disasters.

UN sets date for loss and damage talks, risking Asian no-show

But an ICJ opinion could inform climate lawsuits around the world and – Vanuatu hopes – strengthen vulnerable countries’ position in international negotiations.

Experts have argued that it could give prominence to the question of support for victims of climate disaster. Nations agreed to create a bespoke loss and damage fund at last year’s Cop27 climate talks and have recently set a date for crunch talks on the issue. 

Legal opinions

The ICJ is not the only international court asked to consider this subject.

Total escapes court censure over East African oil pipeline

The governments of Chile and Colombia have asked the Inter-American Court of Human Rights for an advisory opinion on state obligations on climate change, including the upholding of human rights and potential legal action, as well as legal clarity about shared responsibilities between the countries.

The Commission of Small Island States on Climate Change and International Law, backed by Antigua and Barbuda and Tuvalu, is seeking an opinion from the International Tribunal for the Law of the Sea on what impact a key UN treaty governing maritime activities has on efforts to curb climate change.

The post Vanuatu gathers support for UN climate justice statement appeared first on Climate Home News.

While the court, which is the UN’s main judiciary arm, has no binding authority, its opinion could inform lawsuits around the world and strengthen vulnerable countries’ position in international negotiations.

Vanuatu is facing sea level rise and increasingly powerful cyclones that periodically cripple its economy. As emissions rise and the world remains off track to meet its climate goals, overheating is threatening the archipelago’s ecology, livelihoods and infrastructure.

The draft resolution aims to establish the legal avenues for climate justice for present and future generations. It was prepared with a broad coalition of 17 countries, including Angola, Bangladesh, Germany, Mozambique, New Zealand, Portugal and Vietnam and a number of small island states.

Kevin Chand, a legal advisor to Vanuatu’s permanent mission at the UN, told Climate Home more than 100 countries have indicated they will support the resolution – over the simple majority threshold of countries needed to give the ICJ a mandate in a vote at the UN general assembly. But he is not stopping there. “We are looking for a larger majority because this is a signal to the court,” Chand said.

The draft resolution is out! This has been a long time coming for the #ICJAO4Climate camp and we look to the next steps. Thank you to the core group for your incredible engagement and efforts over the past few months, still more work ahead https://t.co/XlDdInN7mo

— Ambassador Odo Tevi (@odo_tevi) November 30, 2022

The draft resolution poses two questions to the court.

Obligations and consequences

It requests the ICJ’s opinion on “what are the obligations of states… to ensure the protection of the climate system and other parts of present and future generations” based on a number of global treaties and principles of international law. These include the UN Charter, the UN climate convention, the Paris Agreement and the UN Convention of the Law of the Sea.

The last establishes that “states have the obligation to protect and preserve the marine environment” and must “take all measures to best reduce and control pollution of the marine environment from any source” including from land-based sources.

Island states back Vanuatu’s quest for climate justice at the UN

Secondly, the document asks the court: “what are the legal consequences under these obligations for states which, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment”? The question is asked in respect to small island developing states and other nations “specially affected by or particularly vulnerable to the adverse effects of climate change” and the people affected now and in future generations.

Margaretha Wewerinke-Singh is a lawyer specialising in arbitration of international disputes, who serves as lead counsel for Vanuatu. “The draft resolution strikes a careful balance between a climate justice-focused dimension and a forward-looking dimension. It recognises that we must draw lessons from the past to build a just and sustainable future and that international law has a role to play in correcting our current trajectory,” she said.

‘The ICJ making a pronouncement on this will really bolster the negotiation position of developing countries.”

Paying damages

Experts have argued that the ICJ’s opinion could give prominence to the question of support for victims of climate disaster, known as “loss and damage”. The issue dominated this month’s Cop27 climate summit, where nations agreed to create a bespoke loss and damage fund.

The resolution doesn’t explicitly ask the court whether countries have a duty to provide loss and damage support – leaving it to the court to decide whether to weigh in on the issue.

Instead, the resolution “notes with utmost concern… that human-induced climate change… has caused widespread adverse impacts and related losses and damages to nature and people”. It acknowledges that temperature rise, climate and weather extremes and slow-onset events such as sea-level rise and desertification “will pose an ever-greater social, cultural, economic and environmental threats”.

Earlier this year, in its updated 2030 climate plan, Vanuatu set out $178 million worth of measures it wants to take to respond to loss and damage. These include affordable micro-insurance, essential healthcare, protecting displaced people and the possible relocation of communities away from threats. Vanuatu says most of the funding would need to come from international donors.

Who should pay for loss and damage? Spoiler: not China

Vanuatu’s president Nikenike Vurobaravu used the Cop27 climate summit in Sharm el-Sheikh to consolidate support for the initiative.

The nation’s permanent mission to the UN said it will begin consultations with other member states over the next few weeks, with a vote expected early 2023.

One of the key targets is the EU, which the core group of backers hopes will formally endorse the resolution.

The post Vanuatu publishes draft resolution seeking climate justice at UN court appeared first on Climate Home News.

With flooding in Pakistan “likely” made worse by global warming and droughts in the Northern Hemisphere exacerbated by high temperatures, the idea that climate change is already having serious impacts around the world that can’t be adapted to is no longer up for debate. 

But who will pay for all this damage is much less certain.

The most vulnerable countries have been trying to get concrete action on loss and damage for three decades. Early proposals sought to set up a global fund, initially framed as “insurance”, that nations would pay into based on their contributions to global greenhouse gas emissions and their capacity to pay (see this timeline by Carbon Brief). 

Later attempts to use the language of compensation and liability proved to be a red line for wealthy nations that were historically high emitters. Experts put this partly down to a fear that it would expose countries to huge legal and financial risks, opening the floodgates for litigation.

Cop27 movers and shakers: Nine people shaping the climate agenda

When the Paris Agreement was finally thrashed out in 2015, it recognised the importance of “averting, minimizing and addressing loss and damage” through the Warsaw International Mechanism but clearly states that this “does not involve or provide a basis for any liability or compensation”. 

At the Cop26 UN climate summit in Glasgow last year, wealthy countries finally agreed a framework for the concept of loss and damage, but not how it would be funded or who should contribute to it. 

A trickle of donations

In September, Denmark became the first UN member to offer direct cash – $13.3 million – for loss and damage, following similar pledges by Scotland and the Belgian region of Wallonia. This is a tiny amount compared to the more than $500 billion in loss and damage that the Climate Vulnerable Forum and the V20 countries calculated that they had already suffered over the past two decades, but it was hoped the move would put pressure on other wealthy nations to follow suit. 

However, they are still proving extremely reticent. Human rights lawyer Harpreet Kaur Paul fears that early industrialisers will keep conversations about loss and damage at Cop27 “centred around information and knowledge sharing – or insurance approaches that do not work”. 

“The history of UNFCCC negotiations is riddled with wealthy countries escaping their responsibility to decarbonise nationally, help other countries do the same, as well as fund measures to adjust and adapt to climate impacts, and now increasingly to address loss and damage too,” she says. “Their refusal to engage on loss and damage is a continuation of that plagued history.” 

The issue of liability hasn’t gone away. “I cannot in good conscience put Canadian taxpayers at liability risks that could be limitless,” Canada’s environment minister Steven Guilbeault told the National Observer in May.

In numbers: The state of the climate ahead of Cop27

Not everyone buys this argument. In an article for E&E News last year, legal experts doubted that simply creating a loss and damage fund at the UNFCCC would increase liability for climate-related damages. Wealthy countries had that fear “because you knew that you will not keep your word of using international cooperation and solidarity as a way to address loss in time”, says a characteristically blunt Harjeet Singh, head of global political strategy at Climate Action Network.

Frans Timmermans, the EU’s top climate envoy, has admitted that European citizens’ willingness to pay is limited “because their worries are linked to their own existence in this energy crisis, in this food crisis, in this inflation crisis”.

Floodgates of litigation

In fact, the floodgates of litigation feared by wealthy nations have now well and truly been opened – as a result of international inaction rather than action. The losses have mounted to a level “where people will become so desperate that the only thing that they can do now is go to the court”, says Singh.

Climate lawsuits have been most successful in getting governments to cut national emissions. Increasingly, many are seeking compensation from historic polluters.

Early cases seeking damages from fossil fuel companies for Hurricane Katrina and for rising sea levels affecting the Alaskan coastal village of Kivalina failed. A lawsuit against German energy firm RWE by Peruvian farmer Saúl Luciano Lliuya, whose home could be flooded by a melting glacier, is still being fiercely fought and could set an important precedent for corporate liability.

Small island states have set up a commission on climate and international law. Vanuatu is campaigning for an advisory opinion on human rights and climate change from the International Court of Justice. The LSE’s Grantham Research Institute expects these initiatives to move the debate “beyond the largely theoretical realm in which it has existed to date”. 

Compensation cases cover much of the same ground as loss and damage talks and can help vulnerable nations in their international negotiation strategies. 

They raise legal and financial risks for companies and financial institutions. They lend a voice to victims of the climate crisis. And they help unravel knotty questions about causality – once thought to be insurmountable – by using attribution science and shedding light on who is legally responsible for paying out.  

Who deserves compensation?

However, litigation poses some risks for wider loss and damage negotiations. 

For a start, a lawsuit lost in court could send the wider message that the victim doesn’t deserve compensation anywhere. 

Conversely, successful litigation for liability and compensation threatens to undermine the UNFCCC’s authority and legitimacy – and particularly the Warsaw International Mechanism as a political forum to address loss and damage – argues Patrick Toussaint, PhD candidate at the University of Eastern Finland Law School. “This rings especially true from the perspective of climate victims,” he wrote in law journal Reciel.

Comment: Climate finance isn’t reaching African communities – Cop27 must fix this injustice

And there’s another problem. When lawsuits started to be filed in the US against fossil fuel firms – cases that are now reaching a jurisdictional crunchpoint – some argued that compensation should not be going to relatively wealthy Global North governments but instead to communities who would suffer the brunt of climate impacts and could least afford to pay for them. 

“If these cases become part of the global climate narrative, what message do they convey about who is deserving of compensation and restoration from fossil fuel companies and other major emitters?” Dr Kim Bouwer asked in a 2020 paper in Transnational Environmental Law. 

“I still think that to some extent,” Bouwer, now assistant professor of law at Durham Law School, tells The Wave. 

She has “a great deal of sympathy for the point that international negotiations have not resulted in any money or any plan”. But while she thinks it would be a fantastic achievement if Peruvian farmer Lliuya wins his case against RWE “the proportion of damages are so small, it’s not going to be enough to properly ameliorate the risk”.

A ‘vital but imperfect’ tool

Paul believes climate litigation can help set the norm that climate losses and damages must be redressed by those who disproportionately increased the risk of the problem. 

“But it is piecemeal, expensive and takes time,” she argues. “A multilateral mechanism – which provides public grant funding – has the potential to operationalise responsibility and equity, and to be accessible by all those communities on the frontline of impacts.”

Nikki Reisch, director of the climate and energy programme at the Center for International Environmental Law, describes litigation as a “vital but imperfect mechanism for distributing climate justice”.

She says the prospect of liability adds much-needed pressure for more ambitious climate action and finance for loss and damage, but “the courthouse door is not equally accessible to all”. “That’s why legal action needs to be accompanied by advocacy for systemic change, policy measures and negotiated solutions that can ensure more far-reaching and equitable remedy.”

Rich nations deflect GCF climate finance burden to private sector

A new NGO called Systemic Justice, which seeks to radically transform how the law works for communities fighting for racial, social and economic justice, has stronger criticism. It describes the wider climate litigation movement as being dominated by “a white, middle-class and able-bodied perspective” and says many more cases could be built to tackle the climate crisis’s compounding injustices. 

Although they have similar aims, there is little overlap between the insular worlds of climate litigation and policy negotiations. Toussaint found a “significant disconnect between the two spheres”, noting that none of the loss and damage lawsuits he analysed referred to the UNFCCC’s Warsaw International Mechanism at all. 

“The only benefit for claimants to refer to the UNFCCC’s work on the topic would be to support the argument that the international policy response as it currently stands is woefully inadequate to protect those in harm’s way,” he concluded. 

Lived experiences 

Toussaint saw several ways in which those involved in climate litigation and policy can work better together, including targeted NGO advocacy, support for vulnerable country delegations to employ litigation as a negotiating strategy, and litigation networks that enhance the contribution of expert climate lawyers (like that set up by Urgenda). 

Meanwhile, Paul asks strategic litigants to speak to their lived experiences of how climate change is harming access to homes, land, livelihoods, water, health and healthcare, education and much more. Lawsuits brought by islanders, in particular, are starting to do this. 

Singh’s appeal to litigators is to eventually point towards a global mechanism under the UNFCCC. “Imagine you take a country to court and the court says you have to pay for the damage, but then they decide who to pay it to. I believe paying through a system which is fair and just would be so helpful.” 

But even an international agreement is unlikely to mean an end to lawsuits. Toussaint, now associate expert at the secretariat of the Convention on Biological Diversity, wrote in his paper that, even if new loss and damage funding were to be agreed at international level, “question marks remain as to how the funds would be distributed and accessed by affected communities locally”. 

He said people might still sue if they thought internationally agreed funds had not been properly allocated or in cases of non-economic losses that can’t easily be compensated with cash. 

Vulnerable nations never wanted things to get so combative. Singh sees climate litigation as one tool useful for putting pressure on polluters over loss and damage, but would really rather peoples’ energy was invested more constructively. “We want a cooperative approach,” he sighs.

A version of this article was originally published on The Wave, a newsletter on climate litigation.

The post See you in court: how climate lawsuits could sharpen Cop27 loss and damage talks appeared first on Climate Home News.

Indonesian environment minister Siti Nurbaya Bakar, who opened the one-day meeting as part of her country’s presidency of the G20, warned the world’s leading economies that they must act together to combat a warming planet or risk plunging it into “uncharted territory”. But officials were unable to agree a joint communique.

The country submitted an updated nationally determined contribution (NDC) to the UN last year, which brought forward a headline target for reaching net zero by ten years to 2060. It plans to cut national emissions by 29% by 2030 against the business-as-usual scenario. Under a “conditional” scenario, which includes international funding, the target goes up to 41%.

While public perceptions about climate change in Indonesia are mixed, campaigners are mobilising and some are resolutely unconvinced by the government’s rhetoric.

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In July, 13 citizens, including children, young adults, farmers and fishers, filed a formal petition to the National Commission of Human Rights, asking it to call on Indonesia’s president to stop violating Indonesians’ human rights by failing to adequately fight climate change.

The petitioners argue that even the updated NDC is inconsistent with a 1.5C pathway, and will lead to national emissions growing rather than falling in the short to medium term. According to Climate Action Tracker, the country’s NDC is “highly insufficient” and its plans to continue to expand coal generation until 2027 are “completely diverging” from the Paris Agreement’s goals.

Low-lying Indonesia, which is made up of more than 17,000 individual islands, is particularly vulnerable to climate change and the petition to the human rights commission documents the impacts that people living there are already experiencing.

Radith Giantiano, a 29-year-old fisherman and free diver from Kupang, was one of many to experience the devastation of cyclone Seroja in 2021, which destroyed fishermens’ boats and homes, as well as fish feeding and spawning grounds.

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He has also seen serious coral bleaching as a result of ocean acidification, which makes it much harder for fish stocks to recover. Although he and others are trying to transplant corals from healthy locations, he said the free diving community feels a “tremendous loss” of the beauty that was once there.

Young people also describe their fears for their own future. Fifteen-year-old petitioner Rasya Assegaf lives in Jakarta, which has seen record high temperatures in recent years. “I never thought that I’d be able to make a change through an official pathway, so when I was given this chance, I really jumped on it.”

The petitioners want to see more mitigation ambition, including a solid government commitment to ending new coal and decommissioning existing power stations. Inspired by a similar petition brought by citizens to the Philippines Commission on Human Rights, they also want Indonesia’s commission to make recommendations for greater transparency about the root causes of climate change.

Margaretha Quina, a Jakarta-based environmental lawyer who works for EarthJustice and is supporting the petition, said one of the low-hanging fruit would be for Indonesia to increase its conditional emission target. “The international community can support this through forestry carbon reduction efforts, encouraging Indonesia to readopt and strengthen its palm oil moratorium and by speeding up clean investment to meet international standards,” she said.

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Campaigners note that most of Indonesia’s contribution to climate change comes from deforestation, and that in terms of land use, land-use change and forestry it is one of the world’s top emitters.

The country has been using its G20 presidency to encourage the rehabilitation of mangrove ecosystems, but at the same time it is trying to push through an LNG terminal in a protected mangrove forest on Bali. The plans are being fiercely opposed by local residents, which point out that it is a carbon sink and also protects the island against erosion and extreme weather.

The Indonesian government has been approached for comment.

The post G20 Bali meeting highlights Indonesia’s weak climate action appeared first on Climate Home News.

The judgment last week shows judges in China are starting to make a link between national carbon targets and energy-intensive activities. 

The case relates to a dispute between one company that contracted another to buy and operate cryptocurrency mining machines but did not get all the bitcoin it believed it had paid for. The first company sued. Its claim was rejected by a court which judged the mining agreement itself invalid because it harmed the public interest.

On 11 July, the Beijing Third Intermediate People’s Court upheld the verdict, ruling that mining cryptocurrency threatens national economic security and social order. This is consistent with a decision by the People’s Bank of China last September to ban all cryptocurrency transactions, citing their role in facilitating financial crime and growing risks to the country’s economy.  

The court added that mining cryptocurrency wastes energy resources in a way that is incompatible with China’s path to carbon neutrality. “Judging from the high energy consumption of ‘mining’ and the impact of bitcoin trading activities on the country’s financial and social order, the contract involved should be invalid,” it ruled.

Mining cryptocurrency like bitcoin is hugely energy-intensive. A study published in Nature Communications last year found that about 40% of China’s bitcoin mines are powered with coal, while the rest use renewables. Given that Chinese mines power nearly four fifths of the global trade in cryptocurrencies, the study concluded that the industry risks undermining Chinese climate goals and wider global action.

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Experts said the latest court ruling is primarily about enforcing the ban on cryptocurrency activities, since covert mining is on the rise again. But growing environmental and energy security concerns among the public do have a role to play.

With restrictions on activism and wider public debate, litigation has proved a powerful route for public prosecutors and NGOs to enforce environmental measures.  

Lawsuits about climate change are only just starting to emerge, in part because China lacks any national climate legislation. But following president Xi Jinping’s commitment to peak national emissions by 2030 and reach climate neutrality by 2060, courts are starting to consider non-legal policy documents or statements by leaders in cases before them.

Danting Fan, climate and finance lawyer at ClientEarth China, said that, in the absence of a national climate law, the latest judgment was the first time a ruling of final effect explicitly mentioned China’s carbon peaking and carbon neutrality goals and “determined a commercial contract to be null and void because of the high energy consumption of the bitcoin mining process, among other reasons, and required parties to promote sustainable development”.

She noted that Zhou Qiang, chief justice of the Supreme People’s Court, has encouraged judges to understand the climate implications of the cases before them. “This is the first example we know of where the judge picked up on this.” 

How the decision will affect China’s cryptocurrency market is unclear. Alex de Vries, data scientist at De Nederlandsche Bank, researcher at Vrije Universiteit Amsterdam and the man behind Digiconomist, said that because miners have scaled down their operations to stay under the radar it is hard for the authorities to weed them all out.

The price of bitcoin dropped from an all-time high of over $65,000 in November 2021 to $18,000 in June, slashing the margins for miners. But de Vries said that, under the right conditions, mining can still be very profitable.

“The price crash hit older and less efficient mining operations hard, but those operating with very cheap electricity and the latest mining devices can still make good money,” he said. “It really depends on what machines you have, how efficiently you can cool them and how much you pay for electricity.”

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The declaration was made as part of the court’s first climate change ruling, which ordered the Brazilian government to fully reactivate its national climate fund.

“Treaties on environmental law are a type of human rights treaty and, for that reason, enjoy supranational status. There is therefore no legally valid option to simply omit to combat climate change,” the ruling said.

The judgment last week was the culmination of a lawsuit filed two years ago against the Brazilian federal government by four political parties: the Workers’ Party, Socialism and Liberty Party, Brazilian Socialist Party and Sustainability Network.

They pointed out that the climate fund (Fundo Clima) set up in 2009 as part of Brazil’s national climate policy plan was inoperative in 2019; annual plans had not been prepared and money had not been disbursed to support projects that mitigate climate change.  

The court held a public hearing in September 2020, which included scientists, academics and people representing civil society and Indigenous groups.

In the judgment, endorsed by ten out of 11 presiding justices, Justice Luís Roberto Barroso noted the huge increase in deforestation in the Brazilian Amazon in 2021 – a problem that has shown no sign of slowing down. Brazil is the world’s fifth largest carbon emitter and deforestation is its largest source of emissions.

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The Supreme Court recognised the climate fund as the main tool available to cut Brazil’s emissions. Not using it was therefore a breach “by omission” of the national constitution, which requires the state to protect the environment for current and future generations.

The judgment notes that the government “hurriedly” resumed some of the climate fund’s activities after the legal challenge was filed, but not all. It ordered the state to properly reactivate the fund, prepare and present annual plans for allocating resources and disburse funds to projects.

The Brazilian government has been approached for comment.

Brazil is one of the global hotspots for climate litigation outside the US, Australia and Europe, but this was the first case that had made it to the country’s Supreme Court.  

The court has yet to rule on at least two other climate lawsuits. One calls for proper implementation of the Action Plan for Prevention and Control of Deforestation in the Amazon, a package of measures and financial directives agreed in 2004 by the federal government to combat Amazonian deforestation and degradation.

Another challenges the government’s failure to properly manage the Amazon Fund, a forest preservation initiative created in 2008. International funding for it has declined since the election of Jair Bolsonaro as president.

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The cases have all been brought by political parties because it is the only way allegations of fundamental rights breaches can be heard directly at the Supreme Court.

Caio Borges, law and climate portfolio manager at the Instituto Clima e Sociedade (iCS) in Brazil, told Climate Home that the court’s declaration that the Paris Agreement is a human rights treaty gives it legal status above national law. “So in future cases, if there is a challenge to a policy or a law in relation to the Paris Agreement, then the courts will apply this understanding and there will be a presumption that the government will need to demonstrate that the challenge law is not in conflict with [it].”

Coming in the same week as the US Supreme Court’s decision to hamper the power of its Environmental Protection Agency to regulate carbon emissions, the Brazilian ruling could also have implications outside its own borders.

Borges noted that human rights organisations had been unhappy with the final text of the Paris Agreement, which relegated explicit mention of human rights to the preamble. “So having a constitutional court qualifying the Paris Agreement as a human rights treaty may spur a global movement for the courts to follow suit in that recognition.”

The post Brazilian court world’s first to recognise Paris Agreement as human rights treaty appeared first on Climate Home News.

Arshak Makichyan, 28, became Russia’s most visible climate activist after he embarked on solo protests in Moscow’s Pushkin Square with a sign that read “Strike for climate”, inspired by Swedish youth activist Greta Thunberg.

But the risks Makichyan was taking were far greater than youth activists in Europe.

At the end of 2019, he was arrested and sentenced to six days in prison for taking part in a demonstration without permission. Individual protests are lawful in Russia but anything bigger requires police permission.

After Vladimir Putin ordered the invasion of Ukraine in February, Makichyan turned his energy into calling out Russia’s brutal war. As the crackdown against Kremlin critics intensified, he left Russia for Berlin in Germany.

Now, prosecutors in the Moscow region are accusing him of illegally becoming a Russian citizen  and are seeking to remove his sole citizenship in a case which opened on Thursday.

“They want to cancel my citizenship because of my activism,” he said in a video posted on social media, describing the case as “impossible”. “But they can’t silence me,” he added.

My name is Arshak.
I am 28 in years old. For 27 of those years, I have lived in Russia. I graduated from school, and then from the Moscow Conservatory. My wife is Russian. 1/8 pic.twitter.com/tQQ3Lv66co

— Arshak Makichyan (@MakichyanA) June 6, 2022

Makichyan was born in Armenia, a former republic of the Soviet Union, and moved to Russia with his family in the mid-1990s when he was one year old.

At the time, people who arrived in Russia from former Soviet Union countries were granted a residency permit. He became a Russian citizen in 2004.

“I thought it was impossible to cancel my citizenship because I don’t have any other,” he told Climate Home.

The case against him could leave him stateless and make it much more difficult for him to return to Russia.

In a letter outlining the charges, seen by Climate Home News, prosecutors in the city of Shatura, east of Moscow, claim that the migration services lost some of his files and therefore cannot prove his citizenship application was done according to the law.

In a second charge, they claim his request for citizenship in 2004 was made using “false” documents, namely that he allegedly did not live at the address mentioned on his application.

The letter states that an inspection of the house carried out at the start of May deemed it to be “unsuitable for living” and that no-one had ever lived there.

“These arguments are insane,” lawyer Olga Podoplelova who is representing Makichyan in court on behalf of the Russian human rights project The First Department, told Climate Home.

Podoplelova said the accusations were “unfounded” and that all due process was followed in Makichyan’s application for citizenship.

“This is such an absurd case that in a normal jurisdiction we would not face such accusations. There are indications that this case is being politically motivated,” she told Climate Home.

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A music graduate from Moscow’s Conservatory, Makichyan has dedicated his life to his activism.

His efforts to build a climate movement in Russia despite the country’s prohibitive anti-demonstration laws have led to him being detained several times.

“We were the first climate movement in Russia and we built this climate awareness from almost nothing,” he told Climate Home.

On 24 February, the day Russia launched its invasion of Ukraine, Makichyan married fellow Russian activist Polina Oleinikova “for political reasons”. If one of them was arrested and sent to prison, the other would be allowed to visit, he explained. “Fuck the war” was written in red ink on the back of his white shirt.

“If you are doing activism in Russia you should be prepared to go to prison,” he said, adding: “We couldn’t even celebrate because we went straight to an anti-war protest.”

Russian activists Polina Oleinikova and Arshak Makichyan on their wedding day (Photo: Arevik Harazyan)

The next day, Oleinikova was arrested and detained for preparing an anti-war action.

In the weeks that followed, Makichyan continued to organise anti-war protests and spread information about Russian atrocities in Ukraine.

“I was trying to be useful for the country and for everyone,” he said.

He called for an embargo on all Russian fossil fuels, describing European sanctions on Russian coal and oil as “far from nearly enough” for failing to cover gas. Since the war started, the EU has paid Russia an estimated €60bn ($64bn) for fossil fuel imports.

“They are continuing to finance this terrible regime and have been doing so for years while Russia’s civil society is oppressed,” he said.

In the face of growing oppression against those daring to speak out, the couple decided to leave the country for some time and travelled to Germany.

In Berlin, Makichyan doesn’t know what the future holds. The next hearing in his case is scheduled for 27 June. His visa to Germany expires at the end of the month.

In Europe, “I don’t think I am a danger [to Putin]. I am not Navalny,” he said in reference to the Russian opposition leader who was poisoned in August 2020.

Makichyan said he believes his case is being used to “scare” and “intimidate” other non-Russian-born Russians and prevent them speaking against Putin’s war on Ukraine.

“I am very grateful to everyone who is not silent in these difficult days,” he said.

The post ‘Politically motivated’: Russian authorities seek to remove climate activist’s citizenship appeared first on Climate Home News.

Formed of more than 80 islands stretched across 1,300 kilometres, Vanuatu is facing sea level rise and increasingly powerful cyclones that periodically cripple its economy.

With the world not on track to meet the goals of the Paris Agreement, on which the survival of vulnerable nations like Vanuatu depends, the Pacific island state decided to take the issue to the UN’s main judicial arm.

The island of 310,000 needs a simple majority of countries at the UN general assembly in September to give the ICJ a mandate to act.

A successful vote “would send a clear signal to present and future generations that no stone is being left unturned in this critical decade to change course,” Odo Tevi, Vanuatu’s special climate envoy and permanent representative to the UN, told Climate Home News.

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Under the proposal, the ICJ would be tasked with interpreting what international human rights and environmental laws mean for states’ responsibility to act on the causes and consequences of climate change.

It has no enforcement powers and the exercise is not designed to win reparations for victims of climate disasters.

But an ICJ opinion could inform climate lawsuits around the world and – Vanuatu hopes – strengthen vulnerable countries’ position in international negotiations.

“Climate litigation is one of the tools that has been used to good effect in certain forums and speaks to growing discontent with the status quo and lack of ambition in addressing climate change,” said Tevi.

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The idea for pursuing this judicial route originates from environmental law students at Vanuatu’s University of the South Pacific campus, who asked the foreign ministry to consider it.

After deliberations and delays because of the Covid-19 pandemic, Vanuatu’s government decided to take on the case in September 2021.

Romabeth Siri is a 25-year-old campaigner with the Pacific Island Students Fighting Climate Change.

A law graduate, she joined the student campaign after cyclone Harold, the second category 5 storm to hit the country in five years, battered her home island of Santo in April 2020. At least 27 people were reported to have died.

“My family who are largely subsistence farmers are heavily reliant on agriculture to generate an income. Having the cyclone destroy what took my family generations to cultivate and sustain made me want to find a solution to this climate crisis within a legal context,” she told Climate Home.

“If governments continue to disregard their citizens’ rights and voices by failing to protect their human rights from the climate crisis, citizens are going to exercise their rights in holding their government accountable in the court of law,” she said.

A family stands next to what used to be their outdoor toilet after the passage of Cyclone Pam in Vanuatu’s capital, Port Vila (Photo: Silke von Brockhausen/UNDP/Flickr)

Tevi is tasked with gathering support for Vanuatu’s initiative in New York. But he started closer to home.

The strategy, he explained, was to engage with the Pacific community first and, from there, build a coalition of like-minded vulnerable countries. “That’s important because climate change poses an existential threat to Pacific island countries but to small states in general,” he said.

Heads of government of the Caribbean Community (Caricom) endorsed the idea during a conference in Belize in March. Climate Action Network, which represents more than 1,500 civil society organisations from 130 countries, threw its weight behind the campaign earlier this month.

Discussions are ongoing with capitals in Europe, Asia, Africa and Latin America, said Tevi, who described the “hard work” of Vanuatu’s diplomatic corps to get a vote over the line. “So far progress has been good.”

It is a big job for a small nation. In 2012, the sinking archipelagos of Palau and the Marshall Islands tried and failed to secure a majority for a similar request, in the face of US opposition.

“Navigating the political landscape at the UN is a minefield, so we’re watchful about that,” Kevin Chand, a legal advisor to Vanuatu’s permanent mission at the UN, told Climate Home.

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The much-delayed publication of the seven-year inquiry’s findings show that 47 coal, oil, mining and cement giants “engaged in wilful obfuscation of climate science”, obstructed efforts towards a clean energy transition and delayed meaningful climate action.

Among the “carbon majors” concerned are BP, Chevron, ExxonMobil, Glencore, Shell, Suncor, Total and RWE.

The report found that “at the very least, [their acts] are immoral” and may form the basis for liability depending on national jurisdictions. The continued expansion of fossil fuel exploration provides further legal grounds for lawsuits, it said – handing campaigners legal arguments for seeking climate reparations through the courts.

“The results… will serve as crucial building blocks for community-led efforts to hold the fossil fuel industry accountable around the world,” said Greenpeace, which filed the petition with local groups.

“The era where the fossil fuel industry and its backers can get away with and profit from their toxic practices is coming to an end,” added Yeb Saño, head of Greenpeace Southeast Asia.

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The inquiry report is among a flurry of proceedings to frame climate change as a human rights issue.

The multi-year investigation began in 2013 following a petition by survivors of Typhoon Haiyan, which killed 6,000 people and was made more extreme by climate change.

The findings are based on hearings in the Philippines as well as in New York and London, scientific and legal evidence and 65 witness testimonies. Only a handful of the 47 carbon majors responded to the inquiry, mostly to dismiss the process.

The Center for International Environmental Law (CIEL), which provided expert testimony, described it as a “watershed moment for climate accountability”.

“The Commission has created a roadmap and a resource for investigations and litigation everywhere,” said its president Carroll Muffett, who added the report had “immediate relevance” in courtrooms and for years to come.

Newly appointed UN special rapporteur on the promotion and protection of human rights in the context of climate change Ian Fry welcomed the report. He said he would be exploring countries’ and companies’ human rights obligations in their response to global heating in his work.

The devastation wrought by Typhoon Haiyan in the city of Tacloban in the Philippines (Photo: Russell Watkins/UK Department for International Development/Flickr)

But in the Philippines, where typhoon survivors who brought the case have been waiting for the outcome for years, the response was more measured.

The report got little media or political attention nationally, despite its publication three days before voters headed to the polls to elect their next president.

Roberto Eugenio Cadiz, who chaired the inquiry, told a press conference that it was “a very difficult process” because of limited financial and human resources.

Because there are no international bodies that can litigate against multinational companies, the commission’s findings will have to be proven in domestic courts, he said. None of the 47 companies assessed in the inquiry are headquartered in the Philippines.

For Red Constantino, executive director of the Philippines-based Institute for Climate and Sustainable Cities this makes for “a moral victory” but it will change little in practice for one of the world’s most climate vulnerable nations.

“It is almost like a manifesto,” he said of the findings. “But I can’t see how the executive, legislative, or judiciary will act on it,” he said. “The ruling can be cited in other cases around the world, but as far as the Philippines is concerned, it moves very little.”

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However, the commission’s ruling could be influential in another emerging legal campaign.

Farhana Yamin, veteran climate lawyer and former negotiator for the Marshall Islands, told Climate Home that the body of evidence on which the report was based will help “all legal processes, all courts and all tribunals, including, for example, the International Court of Justice (ICJ)” in establishing states’ and companies’ climate obligations.

The Pacific island nation of Vanuatu is leading a call on the ICJ to provide an advisory opinion on the legal obligations of all countries in preventing and addressing the climate crisis.

Although these opinions are not binding and the court has no enforcement power, it could shape climate lawsuits in courtrooms around the world.

“A decision on climate change could be the most authoritative statement to date of the obligations that international law imposes on states to control their greenhouse gas emissions,” writes Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School.

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Demanding the ICJ’s opinion requires a majority vote at the UN general assembly in September and gathering support from countries is no done deal.

In 2012, the sinking archipelagos of Palau and the Marshall Islands tried and failed to secure a majority for their request, in the face of US opposition.

Ten years later, climate negotiations have yet to deliver finance to victims of climate-related losses. Vulnerable nations are ready to give the judicial route another try.

At the Cop26 climate talks, Antigua and Barbuda and Tuvalu agreed to establish a commission of small island states on climate change and international law. The commission is seeking an advisory opinion from the International Tribunal for the Law of the Sea on the issue.

They hope that a ruling would enable them to sue the most polluting developed countries for the damages caused by climate change, should collaborative finance efforts fail.

The post Philippines inquiry finds polluters liable for rights violations, urging litigation appeared first on Climate Home News.

The Q’eqchi’ community of Agua Caliente is demanding the Inter-American Court of Human Rights voids the permits of an open-pit nickel mine, in the town of El Estor, for which it says it was never consulted.

Under international human rights standards, states have the obligation to consult indigenous communities and obtain their free, prior and informed consent over projects affecting their lands and resources.

But indigenous communities in Latin America have denounced constant violations of this right.

The case is one of a growing number of lawsuits brought by indigenous peoples to compel governments in the region to respect their right to veto extractive projects affecting them.

Lawyers in this suit, which opened last week, are going a step further. They argue that the court should recognise the rights of indigenous people to permanent sovereignty over their natural resources as a principle of public international law.

“We believe consultation is not enough, consent is not enough. But the court has never said anything about the rights of communities to their natural resources,” Leonardo Crippa, an attorney with the Indian Law Resource Center representing the community, told Climate Home News.

If successful, the lawyers argue it could set a “historical” legal precedent for other communities in Latin America and become “fundamental” to advance climate action in the region.

The case comes amid a growing recognition of indigenous peoples’ critical role in addressing the dual climate and biodiversity crisis.

Indigenous people are estimated to protect 80% of global biodiversity. In recent years, a ballooning body of studies has shown that indigenous territories have lower or similar levels of deforestation to other protected areas.

At the Cop26 climate talks, governments recognised “the important role” of indigenous peoples “in addressing and responding to climate change” and agreed “to respect, promote and consider” their rights.

Rodrigo Tot is an indigenous leader in Guatemala’s Agua Caliente, who was awarded the prestigious Goldman Environmental Prize for his efforts to protect his community against mining. He told Climate Home he hoped the case will bring peace to his community, which has lived in fear of intimidation and violence for opposing the mine.

“When it comes to protecting forests, it will not be up to the government who has failed, but to us — this is what we have been fighting for, for the right to continue to protect our lands,” he said.

For Crippa, guaranteeing indigenous people’s sovereignty will further “alleviate extreme poverty” and help meet sustainable development goals by allowing communities to reap the benefits of projects they have agree to.

Rodrigo Tot speaking to households in Agua Caliente, Guatemala, about their rights to land (Photo: Goldman Enviornmental Prize)

The case comes hot on the heels of a ruling by the Constitutional Court in Ecuador, the country’s most powerful judiciary body, which called for stronger protection to guarantee the right of indigenous communities to consent to any oil and mining activities affecting their land.

Legal observers say it gives Ecuador one of the most powerful legal precedents in the world on the rights of indigenous peoples right to consent.

They say this deals a blow to Ecuador’s president Guillermo Lasso’s ambition to double the country’s oil production to one millions barrels per day and expand mining activities. Indigenous land covers 70% of the oil and mineral-rich Ecuadorian Amazon.

The court ruled that if an indigenous community refuses a project, the government can still move forward in “exceptional cases” but that “under no circumstances can a project be carried out that generates excessive sacrifices to the collective rights of communities and nature”.

The indigenous rights movement in Ecuador maintains that any oil or project in their ancestral territories taking place against their will implies unreasonable sacrifices, according to NGO Amazon Frontlines.

Last month, a ruptured oil pipeline contaminated water that supplies indigenous communities in a protected area of the Amazon’s rainforest.

“This ruling is monumental. It’s a game-changer in the balance of power between the extractive interests that the state represents and indigenous peoples,” said Brian Parker, of Amazon Frontlines.

The Coca River, which is a source of water for indigenous communites, was contaminated following an oil spill in eastern Ecuador (Photo: Alianza Ceibo/Emilio Bermeo )

Kevin Currey is programme officer at the Ford Foundation, a member of the alliance of governments and private funders that committed to provide $1.7bn to support indigenous advance their land rights by 2025 during the Cop26 talks.

The alliance has committed to fund activities that strengthen and protect indigenous peoples’ land resources rights and “strategic litigation may be one important avenue for securing and defending their rights,” he said.

“These recent cases should be a wake-up call, not just in Ecuador and Guatemala, but around the world that ignoring indigenous rights generates enormous reputational, financial, and legal risks.”

Lawyers in the Guatemala case hope the court decision will push international financiers and investors not to support projects where indigenous peoples’ rights have been violated.

A 2018 study published in the Proceedings of the National Academy of Sciences found that conflict with local communities was costing large-scale mining projects $20 million per week in delayed production.

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The report published by the Intergovernmental Panel on Climate Change (IPCC) on Monday is expected to become a critical piece of evidence in climate litigation cases.

It found that it is “unequivocal” that human activity is causing climate change and there is “high confidence” that human-induced greenhouse gas emissions are the main drivers of more frequent or intense heatwaves, glaciers melting, ocean warming and acidification.

Past versions of the IPCC assessments have been extensively used in climate lawsuits and relied on by judges to establish a link between anthropogenic emissions and climate impacts.

The starker language and findings of this latest report have the potential to strengthen climate lawsuits against both governments and companies, Kate Higham, who coordinates the Climate Change Laws of the World project at the Grantham Research Institute on Climate Change and the Environment, told Climate Home.

This is important, she said, because researchers have found that the evidence used by lawyers in climate cases often lagged behind the most up-to-date science that could help establish causal links between emitters and climate impacts.

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A study published in Nature Climate Change in June, which analysed evidence from 73 lawsuits, concluded that in most cases, there was no attempt to quantify the extent to which climate change was responsible for the climate-related events affecting the plaintiffs.

Now, legal experts are expecting the latest IPCC report to strengthen the evidence and the claims made by plaintiffs. The report recognises the progress of attribution science in linking individual extreme weather events such as heatwaves, heavy rain, droughts and tropical cyclones to greenhouse gas emissions with more certainty.

Rupert Stuart-Smith, a founding member of the Oxford Sustainable Law Programme who researches climate change litigation and attribution science, told Climate Home the report “provides, implicitly, a call to arms for the use of evidence of this type”.

“By and large, attribution science hasn’t had its day in court,” he said, adding that “many of the cases are still unsuccessful for legal, rather than scientific reasons.”

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Attribution science can help establish the causal relationship between emissions from a company and the losses experienced by a plaintiff in cases seeking compensation from major emitters for example.

It can also be used in lawsuits which have asked a court to instruct a government or company to deepen their emission reductions by setting out the consequence of failing to cut those emissions.

Stuart-Smith said attribution studies could help ensure that cases that are filed in courts actually do relate to impacts and extreme events that can be linked to climate change. Last month, a rapid attribution study found that temperature extremes that had engulfed North America were “virtually impossible” without climate change.

“With the right channels of communication between the legal and scientific communities,” scientists could be made aware of legal interests and provide evidence for specific cases, he said.

“Of course there’ll still be legal issues which need to be ironed out. But if we are able to get past those initial legal obstacles, it doesn’t seem far-fetched anymore to suggest that future cases will in fact force companies to pay compensation to communities affected by climate change,” he said.

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Cases that have already been filed but haven’t passed some of those legal hurdles could benefit from the latest scientific assessment to strengthen their evidence to the courts, Higham said.

“There is an argument that this report will be useful in cases similar to the Milieudefensie vs Shell case in showing that emitters have a responsibility to reduce emissions going forward because we know that these emissions will contribute to climate harm,” she said.

That case, which resulted in a Dutch court ordering Royal Dutch Shell to cut its emissions 45% by 2030 compared with 2019, was the first time a company was held legally responsible for its role in causing the climate crisis.

The IPCC’s assessments of the remaining carbon budgets to meet the Paris Agreement temperature goals could further help start a conversation in the courts over who needs to reduce emissions and by how much, Higham added.

For Kate McKenzie, of the Strathclyde Centre for Environmental Law and Governance the report will, above all, strengthen claims calling on governments to do more to cut emissions.

The report’s stronger language on the need to reach “at least net zero CO2 emissions” to stabilise the climate could lead to “potential tougher judgements” in asking governments to go beyond net zero emissions, McKenzie told Climate Home.

Ukraine aims to grow economy without increasing carbon emissions

Greater understanding of long-term climate impacts set out in the report could reinforce the cases of youth claimants, who have increasingly argued that poor climate action is violating their rights to a humane future, she said.

And the report’s emphasis on regional differences in climate projections offers stronger evidence for countries to sue each other over climate impacts, McKenzie added.

“I do think that this provides stronger evidence if a small island state or an African nation starts bringing a case against a larger emitting country in the international legal arena,” she said. Although no such case has yet been filed, McKenzie said the prospect could not be ruled out.

Campaigners are ready to take on this call to action.

“We’re not going to let this report be shelved by further inaction. Instead, we’ll be taking it with us to the courts,” said Kaisa Kosonen, senior political advisor at Greenpeace Nordic.

“By strengthening the scientific evidence between human emissions and extreme weather the IPCC has provided new, powerful means for everyone everywhere to hold the fossil fuel industry and governments directly responsible for the climate emergency.”

The post IPCC report a ‘call to arms’ for climate science in courts, legal experts say appeared first on Climate Home News.

As widely reported, the decision increases litigation risks for other oil and gas companies, with Total already facing a similar case in France. Less attention has been paid to the possible implications of the ruling for governments and financial institutions.

A recent legal opinion by University of Cambridge professor Jorge Viñuales and barrister Kate Cook suggests that governments and public finance institutions that support new fossil fuel infrastructure face litigation risks similar to those of the fossil fuel industry. Like Shell, they continue to pour fuel on the fire by supporting fossil fuel production.

The G20 governments provide more than three times as much public finance for fossil fuels as for clean energy every year and their support for fossil fuels continued even after the adoption of the Paris Agreement. Like Shell, they can change course. By shifting public money out of fossil fuels, they can help avoid the worst climate crisis scenarios whilst freeing up finance to accelerate the transition to a just and green future.

The legal opinion focuses on one particular type of public finance institution – export credit agencies – which support domestic industries to do business overseas. But its conclusions, the authors say, apply to all forms of government support for fossil fuel infrastructure.

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The opinion concludes that governments and the public finance institutions that they oversee need to stop financing new fossil fuel-related activities and reduce existing funding, or risk being in violation of their international legal obligations, including climate change and human rights duties.

Like the judgment in the Shell case, the opinion is rooted in the scientific evidence of the life-threatening consequences of the climate crisis and the urgent need to wind down fossil fuels to address it. This evidence has since been backed up by a report from the International Energy Agency, which says that there can be no investments in new fossil fuel supply in a scenario that maintains a 50% chance of staying below 1.5C.

Both the Shell case and the legal opinion emphasise the importance of “due diligence” – the need to fully consider the consequences of an intended decision.

By taking the risk out of investment in fossil fuels, public finance, whether in the form of export finance, (multilateral) development finance, recovery money or fiscal support, helps to leverage huge sums of private money towards it. In light of governments’ due diligence obligations, doing so is an increasingly risky approach.

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Another area in which the legal opinion coincides with the Shell judgment is in its finding that private actors, like companies, can have duties under international law. Further development of these arguments could open the door to future challenges to the private financing of fossil fuel projects, or government failure to take action to address such financing.

The recent Shell ruling, considered alongside the legal opinion, has serious implications for companies, governments, their public finance institutions and other actors that continue to support fossil fuel expansion.

At the same time, it can be welcomed as a wake-up call, presenting an opportunity to accelerate climate action by redirecting public and private money away from fossil fuels and towards building a just and green future. One thing is clear: the factors to be weighed in deciding which path to take now include the danger of ending up in court.

Harro van Asselt is a professor at University of Eastern-Finland Law School and affiliated researcher at Stockholm Environment Institute. Gita Parihar is an environmental advocate and in-house consultant for environmental NGOs and the UN, and a board member of the Climate Justice Fund.

The post Shell court ruling is a wake-up call for governments to end fossil fuel support appeared first on Climate Home News.

The judgement by a court in The Hague sets a significant precedent that companies, not just countries, have a duty to align with the Paris Agreement.

By ordering Shell to cut its emissions 45% by 2030 in line with global climate goals, the judge handed campaigners the tools to unleash a series of lawsuits against the fossil fuel industry.

The ruling makes clear that Shell is responsible not just for cutting emissions from its own operations, but from the use of its products as well. While the judgement didn’t rock Shell’s shares, it certainly would have set alarm bells ringing in the company’s head office as it works out the implications.

For Harro van Asselt, a professor at the University of Eastern Finland Law School, the conclusion is clear: Shell has to reconsider its fossil fuel production plan.

The company has vowed to appeal the decision — setting in motion a legal battle which could drag on for many years. For now, the verdict sends a warning to boardrooms around the world to take stock of the Paris accord.

Investors are ramping up pressure on big oil to take meaningful steps to cut their emissions. Shareholder revolts over climate action took Exxon Mobil and Chevron’s annual general meetings by storm this week.

Meanwhile in the EU, Portugal is proposing the bloc allows methane gas pipelines to remain eligible for EU funding until the end of the decade in a bid to woo support from Eastern leaders.

This week’s news…

• Portugal draft proposal allows methane gas pipelines to receive EU funding until 2030
• Shell ordered to slash emissions 45% by 2030 in historic court ruling
• Brazil’s environment minister investigated for illegal logging cover-up
• G7 commits to end unabated coal finance in 2021 to ‘keep 1.5C within reach’
• With Indonesia’s answer to Elon Musk in jail, electric vehicles are going nowhere
• Facebook fuels climate misinformation online, report finds

and comment…

• To meet net zero by 2050 we need a long-term vision for carbon pricing
• Governments are overlooking a key piece in the climate puzzle: community energy

The post Paris deal enters boardrooms – Climate Weekly appeared first on Climate Home News.

It is the first ruling ordering a company to reduce its emissions in line with the Paris Agreement. The case was heard by the district court in the Hague, where Shell is headquartered. 

Campaigners say the outcome sets a precedent for future lawsuits against the fossil fuel industry and could unleash a wave of climate litigation against big polluters.

Seven environmental groups, including Greenpeace and Friends of the Earth the Netherlands, also known as Milieudefensie, filed the lawsuit against Shell in April last year, on behalf of more than 17,000 Dutch citizens.

Campaigners argued that Shell is violating its international climate obligations and threatening the lives of these citizens by continuing to invest billions every year in expanding its oil and gas production. 

The judge ruled that Shell’s current climate strategy is “not concrete enough and full of caveats,” adding that the oil major has a legal obligation to reduce its emissions in line with international climate goals. 

Sara Shaw, a campaigner for Friends of the Earth International, described the ruling as “an extraordinary victory for the climate justice movement”. 

“For the first time a fossil fuel corporation has been held responsible for their role in causing the climate crisis,” Shaw told Climate Home News. 

How youth climate court cases became a global trend

“This landmark ruling now sets a precedent that corporations can be held liable for causing runaway climate change and forced to cut emissions in line with global climate goals,” said Marit Maij, executive director of ActionAid Netherlands.

“Big polluters beware,” she added.

Global fossil companies getting very nervous by this new Dutch court ruling….

— Bas Eickhout (@BasEickhout) May 26, 2021

Harro van Asselt, a professor at the University of Eastern Finland Law School, told Climate Home the ruling suggests that a fossil fuel company has a responsibility to reduce its own emissions as well as emissions from its suppliers and its customers. “In effect, this suggests that Shell has to reconsider its fossil fuel production plans,” he said.

A spokesperson for Shell told Climate Home the company “fully expect[s] to appeal today’s disappointing court decision”.

“Urgent action is needed on climate change which is why we have accelerated our efforts to become a net-zero emissions energy company by 2050, in step with society, with short-term targets to track our progress,” they added.

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Shell faced a growing revolt among its shareholders over its emission reduction plan at its annual general meeting last week. A climate resolution presented by campaign group Follow This, demanding Shell set new climate targets to reduce its emissions in line with the Paris Agreement across its operations and supply chain, received more than 30% of the votes.  

Shell’s net zero strategy allows for oil and methane gas production to expand until 2025. 

This is at odds with the International Energy Agency’s first comprehensive scenario aligned with limiting global heating to 1.5C, which found that all new exploration projects must stop now if the energy sector is to reach net zero emissions by 2050. 

Campaigners have accused Shell of planning to offset emissions by planting trees, rather than cutting emissions at source. To offset its carbon emissions in line with 1.5C, Shell’s strategy requires planting a forest the size of Brazil. 

Climate experts have criticised Shell for “taking colossal risks with our common future” by betting on tree planting rather than rapidly scaling down fossil fuel production. 

Comment: Shell’s net zero plan will be judged on science, not spin

Campaigners built their case on a precedent set by the ‘Urgenda case’, a landmark climate lawsuit taken to the top of the Dutch court system in 2019.

In December 2019, the Supreme Court in the Netherlands ordered the Dutch government to cut its greenhouse gas emissions 25% by the end of 2020, compared to 1990 levels, as its fair share to tackle climate change.

The court ruled that the Dutch government was causing an “unacceptable danger” to its citizens and violated its duty of care to them by continuing to pollute. 

Korey Silverman-Roati, a climate fellow at Columbia University’s Sabin Center for Climate Law, said the 2019 Urgenda case inspired activists around the world to sue their government for failing to cut emissions. “This case may do the same for cases against fossil fuel companies,” he said.

The post Shell ordered to slash emissions 45% by 2030 in historic court ruling appeared first on Climate Home News.

The case was brought by nine youth climate activists who argued that the law in its current form violates their right to a humane future, as it does not go far enough to reduce emissions and limit global temperature rise to 1.5C.

German energy minister Peter Altmaier described the ruling as “big and meaningful” and said it was “epochal” for the rights of young people and climate protection.

Top court rules German climate law falls short, in ‘historic’ victory for youth

Climate litigation is a maturing field. Over the past decade, lawyers have tested several strategies for challenging climate harm or inaction through the courts.

Here Climate Home News explores which legal avenues have been successful and which approaches have failed.

Human rights

Lawsuits that argue that governments have a human rights obligation to avoid dangerous levels of global warming are becoming increasingly widespread and successful, said Joana Setzer, a research fellow at the Grantham Research Institute on Climate Change and the Environment at Imperial College London.

The most pivotal climate lawsuit in the past decade, the landmark Urgenda case in the Netherlands, centred on human rights. 

In 2019, the Dutch Supreme Court ordered the government to cut its greenhouse gas emissions by 25% by the end of 2020, compared to 1990 levels, as its minimum fair share to tackle climate change. 

The case was brought by the Urgenda Foundation, a climate group representing the interests of 900 Dutch citizens who argued that the government was putting them in “unacceptable  danger”, by setting an insufficient emissions reduction goal of 14-17% by 2020, from 1990 levels. 

The court ruled that the government had failed to protect the human rights of its citizens by violating Articles 2 (right to life) and 8 (right to respect for private and family life) of the European Court of Human Rights (ECHR). 

Climate campaigners cheered and hugged each other as the verdict was read out at a district court in the Hague on 24 June 2015 (Photo: Urgenda)

The Urgenda verdict sparked a wave of human rights lawsuits around the world, from New Zealand to Ireland. 

Climate group Friends of the Irish Environment (FIE) used similar arguments when it brought a case against the Irish government for failing to take adequate action to curb emissions and protect its citizens’ right to life. The Irish Supreme Court ordered the government to draw up a new emissions mitigation plan, but did not tackle the human rights arguments invoked by FIE.

The right to life has also formed the backbone of high-profile climate displacement cases. 

The most famous relates to Ioane Teitiota, a man from Kiribati living in New Zealand, who fought numerous legal battles to stop him being deported back to the Pacific island nation. Teitiota argued that returning to a nation threatened by rising sea levels and other climate impacts posed a serious risk to his life.

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After New Zealand’s Supreme Court rejected Teitiota’s asylum claim as a climate change refugee, he took his case to the UN Human Rights Committee. 

While the committee denied Teitiota’s claim on the grounds that he did not face imminent danger, it did rule in January 2020 that countries may not deport people who face climate-related risks that violate their right to life.

The committee stated that “given the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realised.”

“That recognition is significant; at some point countries could have an obligation to accept climate refugees,” Hillary Aidun, climate law fellow at Columbia University’s Sabin Center for Climate Law, told Climate Home News. 

Youth plaintiffs 

Another major theme is intergenerational inequity. “We see a trend of youth plaintiffs seeking to vindicate their rights as well as the rights of future generations,” said Aidun. 

Youth activists who are unable to vote have found a powerful way to make their voices heard: by organising climate strikes and filing lawsuits, said Kate McKenzie, a legal researcher at the Strathclyde Centre for Environmental Law and Governance.

One of the most pivotal cases is a lawsuit filed by six Portuguese young people at the European Court of Human Rights in Strasbourg. They have filed a legal action accusing 33 countries of violating their right life by not doing their fair share to tackle the climate crisis. 

This case highlights the urgency needed to tackle the climate crisis, McKenzie told Climate Home News. “With youth activism there is a sense of ‘we are running out of time.’ Governments don’t get to keep doing things slowly like they are used to doing,” said McKenzie.

The six Portuguese young people who filed the first climate case at the European Court of Human Rights in Strasbourg, France. From left to right and top to bottom: André Oliveira, Catarina Mota, Cláudia Agostinho, Mariana Agostinho, Martim Agostinho and Sofia Oliveira (Photos: Global Legal Action Network)

Young activists make powerful plaintiffs as they represent current and future generations who will suffer the worst impacts of climate change, Setzer told Climate Home News. 

“Often you cannot get the courts to protect generations that do not yet exist. Children are going to live another 80 years. They can force governments to make decisions about 2050 targets and change behaviours now in order to achieve those ambitious targets,” said Setzer. 

Young people successfully used the future generations argument in a case brought before Colombia’s Supreme Court. 25 young people argued that the government’s failure to curb deforestation of the Amazon rainforest threatened their rights and those of future generations.

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The court agreed with their arguments and ordered the government to come up with a plan to reduce deforestation. 

What made this case unique was that it recognised the Amazon rainforest as an entity with its own rights.

“Most countries don’t protect the environment as an entity. It’s all about humans,” said Setzer, noting that just 13 countries reference protecting the environment in their constitutions. 

Polluter accountability

Despite their clear contribution to global carbon emissions, it is difficult to hold big polluters accountable in court.

The tobacco litigation strategy, which directly linked smoking to disease, hasn’t worked for climate activists, said Setzer.

“One of the complicating factors is attribution: how much climate change can you attribute to a particular company?” said Aidun. “We have yet to see to what extent corporations can be held accountable for climate change.”

Shell faces Dutch court in case testing how Paris climate goals apply to businesses

An ongoing case involving Royal Dutch Shell may change this. The case, which is  being heard by the high court in the Netherlands, is testing whether the Paris Agreement applies to corporations and oil companies can be held liable for their CO2 emissions. 

Seven environmental groups are demanding that Shell cut its CO2 emissions by 45% by 2030 and to zero by 2050, compared to 2019 levels, in line with the toughest 1.5C temperature limit in the Paris pact.

Campaigners have built their case on the Urgenda precedent and argue that the duty of care law applies to companies as well as governments. A verdict is expected in May. 

Climate campaigners are demanding Shell cut its CO2 emissions by 45% by 2030 and to zero by 2050 (Pic: Wikimedia Commons/Lommer)

A victory for the campaigners would force one of the world’s largest energy companies to quickly phase down production of oil and gas and invest in clean energy sources instead.

Experts say it is a landmark case for corporate responsibility which could spark a wave of litigation cases against other big polluters, if campaigners win. 

“It forces behaviours to change in the future and that is very important,” said Setzer.

Most liability cases focus on claiming damages for past harm caused by climate change, whereas the Shell case looks into the future, she added. 

Greenwashing claims which accuse companies of misleading advertising campaigns are also on the rise. “People relate easily to greenwashing,” said Setzer. “No one likes being cheated.”

In 2018, environmental law charity ClientEarth lodged a complaint against BP, accusing the oil company of misleading the public by focusing on its low-carbon products, when over 96% of its annual spending is on oil and gas. ClientEarth argued that this type of advertising was in breach of guidelines for multinational firms issued by the Organisation for Economic Cooperation and Development.

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The legal complaint led to BP withdrawing the adverts. Lawyers said it set an important precedent that greenwashing cases can be challenged under international standards.

“It set a precedent for people to use the OECD guidelines to hold companies to account for their greenwashing on the basis of consumer interests,” ClientEarth lawyer Johnny White told Climate Home News.

“Fossil fuel companies using advertising to mislead the public over their climate impact were essentially put on notice,” White added.

“[Greenwashing cases] won’t change climate change, but they will change consumer and corporate behaviour,” Setzer said.

The post How youth climate court cases became a global trend appeared first on Climate Home News.

“The challenged provisions do violate the freedoms of the complainants, some of whom are still very young,” the court said in a statement with reference to climate activists who had filed the complaint with support from several environmental NGOs. “The provisions irreversibly offload major emission reduction burdens onto periods after 2030.”

Legal experts said the decision is unexpected and unprecedented in Germany and will have far-reaching effects. “Climate action has been significantly strengthened by the Federal Constitutional Court today,” Thorsten Müller, head of Stiftung Umweltenergierecht (foundation for research on energy and environment law), told Clean Energy Wire. “So far, we have not had any successful lawsuits for more climate action in German jurisdiction.”

He called the decision “historic,” as for the first time the court made very clear that a violation of the state’s obligation to protect the “natural foundations of life,” which it said includes climate protection, could constitute a violation of the fundamental rights of citizens. Citizens now have a process to sue, but lawsuits for more climate action “are unlikely to succeed in most cases, unless we are in the situation where the state violates its objective duty to protect,” he explained. Concrete climate policy would still be decided in the political process.

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The German court’s decision follows a rising number of similar cases across the world. In the first decision of its kind, the Netherland’s Supreme Court in 2019 upheld a ruling by a lower court forcing the government to meet emission reduction targets. The case not only inspired German activists, but also similar climate justice lawsuits in many other countries, including Belgium, France, Ireland, New Zealand, Britain, Switzerland and Norway.

Müller said he was greatly surprised by the ruling. “If you had asked me before, I would have said that this lawsuit has no chance of success.”

Germany’s current governing coalition of chancellor Angela Merkel’s conservatives (CDU/CSU) and the Social Democrats (SPD) introduced the country’s first major climate law with binding emissions reduction targets for the 2020s as part of a comprehensive package of measures in 2019. The package was meant to ensure that Germany reaches its 2030 targets, but the climate action law also included a line on “pursuing” the long-term target of greenhouse gas neutrality by 2050. However, it postponed the decision for emissions reduction targets post-2030 to a later date.

Climate activists welcomed the ruling. “Climate action is not ‘nice-to-have’, it’s our fundamental right and from today we know that officially,” said Lisa Neubauer, one of the leading figures of Germany’s Fridays for Future protest movement, at a press conference after publication of the ruling. “It gives us everything we need for this year, for this federal election campaign, and for our future work as a movement.”

A HUGE WIN FOR THE CLIMATE MOVEMENT! One year ago, we filed a case against the German government & its climate law. Today, the German constitutional court has decided that climate justice is a fundamental right. Today’s inaction mustn’t harm our freedom & rights in the future.

— Luisa Neubauer (@Luisamneubauer) April 29, 2021

Neubauer and several other activists, supported by NGOs Germanwatch and Greenpeace, had sued the German government in early 2020 over what they said was its insufficient action to tackle climate change. It was one of several lawsuits filed then, which CDU lawmaker Jan-Marco Luczack had dismissed as a good “PR gag.” A first similar lawsuit against the federal government was filed by three farming families with the help of Greenpeace in October 2018. The Berlin Administrative Court dismissed that suit.

The immediate consequence of the ruling is that the German legislator must regulate the continuation of the reduction targets for the post-2031 period by 31 December 2022 at the latest. This does not mean annual sector reduction targets until 2050, when climate neutrality is to be reached, cautioned Müller. However, “there must be points of reference, that is the core message of this ruling, in order to be able to precisely assess how we get from today to the goal of climate neutrality.” The court also did not rule that the targets until 2030 have to be adapted.

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The court said Germany’s Basic Law – the country’s constitution – obliges the state to protect the climate, which includes reaching the target of climate neutrality. The court did not prescribe when or how this goal should be reached, but said the German government had already decided to try to limit global temperature rise to well below 2°C and preferably to 1.5°C above pre-industrial levels, as prescribed by the Paris Climate Agreement. The court argued that the emissions reduction provisions in the climate law violate the complainants’ freedoms guaranteed by Basic Law.

To reach the Paris targets, the post-2030 goals would have to be achieved faster and more urgently, it said. “These future obligations to reduce emissions have an impact on practically every type of freedom because virtually all aspects of human life still involve the emission of greenhouse gases and are thus potentially threatened by drastic restrictions after 2030,” said the court, adding that the legislator should have taken precautionary steps to mitigate these major burdens in order to safeguard the freedom guaranteed by fundamental rights.

This is the second aspect that makes the decision historic, said legal expert Müller. “We are always talking about budget approaches in the area of climate action,” he said. Now the Federal Constitutional Court added a new dimension to this by not only saying there is a global emissions budget that must be divided up among states. “No, there is also a generational climate action budget within the countries.”

Lawyer Hermann Ott from environmental organisaton ClientEarth also saw this as a key part of the ruling. “For the first time, a German court has accepted that we have a limited climate budget left and that the constitutional duty to protect future generations is engaged.” If the mitigation of greenhouse gas emissions is not fairly distributed over the next 30 years until 2050, “there may be disproportionate impacts on the fundamental rights of future generations,” Ott said. “The court has now recognised this and made it clear to the government that climate debts cannot be postponed.”

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Government representatives from conservatives and Social Democrats entered a sort of blame game after the publication of the ruling. Environment minister Svenja Schulze (SPD) said she would have liked to include another interim target for the 2030s, “but there was no majority for this” in the negotiations in 2019.

Her Social Democrat colleague and chancellor candidate Olaf Scholz publicly criticised CDU economy minister Peter Altmaier: “To the best of my recollection, you and the CDU/CSU have prevented exactly what has now been called for by the Federal Constitutional Court. But we can quickly correct that. Are you with us?” Schulze said she would present key points for a reform of the climate law in summer.

Altmaier did not talk about the 2019 negotiations, but replied that he already proposed post-2030 interim targets in his call for a “historic consensus” on climate among all German parties in September 2020, which in turn was not answered by the SPD.

At a press conference, Altmaier said that the ruling was of “extraordinary importance” for climate protection, the rights of young people and for the planning security of German businesses. “We have set into motion many things in the past years. Some of them came late, maybe too late,” Altmaier said. He added that the ruling must be respected and implemented. “I see this ruling as a gift, because it means that climate action is put back on the agenda before the general election.” He said he would present his fellow ministers with suggestions in the coming weeks on how the government could ensure that climate policy making wasn’t delayed by the elections and the ensuing creation of a new government.

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German parties have swung into full campaign mode for the national election in September, after both the Conservatives and the Green Party presented their chancellor candidates last week. This also means that a decision on the reform of the climate law will be up to the next government, in which the Greens could play an important role, maybe even providing the chancellor.

The party’s candidate, Annalena Baerbock, welcomed the ruling. Calling it a “historic decision” on twitter, she wrote that it gave a concrete mandate to revise the climate action law now. “Climate action protects our freedom and the freedom of our children and grandchildren […] The next few years are crucial for consistent action,” she said.

“Meanwhile, the Greens’ chancellor candidate floats serenely above it all, hailing the ‘historic decision’,” commented journalist Tom Nuttall on Twitter.

German stakeholders largely welcomed the ruling as a push for more clarity and ambitious climate action. German industry federation BDI highlighted the need for planning security for companies it represents. “In a transparent way, policymakers must outline viable climate paths up to 2050 in order to specify CO2 reductions. This creates clarity and planning security for companies to develop new technologies and invest massively, and is in the interest of industry,” said BDI in a statement.

Ingbert Liebing, head of the German association of local utilities (VKU), also welcomed the decision. “The ruling increases the pressure to create clear and more reliable framework conditions for climate protection in the long term,” Liebing said. “Municipal enterprises are already making a variety of contributions to climate protection today, but for this they need reliable framework conditions from politicians – as the judges in Karlsruhe have clearly demanded today.”

This article was produced by Clean Energy Wire and republished under a Creative Commons licence.

The post Top court rules German climate law falls short, in ‘historic’ victory for youth appeared first on Climate Home News.

Speaking to Climate Home News, Grenada’s finance minister Gregory Bowen said successive governments were desperate to change this but had their hands tied by a privatisation deal made nearly 30 years ago.

On advice funded by the World Bank, the current government pursued reforms to support renewables – only to be ordered to renationalise the electric utility by a World Bank tribunal, for $58 million plus legal costs.

As the government seeks to recoup some of the costs by selling shares in the utility, Bowen held up the three decade-long struggle as a cautionary tale. “It has significantly prevented us from going into renewables and we do not believe any country, any small country, should enter any such agreement,” he said.

In the 1980s, almost all developing countries had nationally owned electric utility companies. The only major exception was Chile, then run by free-market dictator General Augusto Pinochet. In the 1990s, they started to sell them to private companies, cheered on by institutions like the World Bank.

One of those countries was Grenada. In 1994, on advice from the World Bank, it privatised its electric utility, Grenlec. The then government sold a controlling interest to a small family firm in Florida called WRB Enterprises, which made its money primarily by selling Caterpillar construction machinery and whose only electricity experience was in part of the Turks and Caicos.

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Bowen, who ran Grenlec when it was state-owned, described the privatisation contract as one-sided and “the worst deal that could ever have passed” for Grenadians.

Bob Blanchard, chief executive of WRB, disputed that characterisation, telling Climate Home News the company shouldered its fair share of risk. “Every decision we made if it backfired came on the stockholders not the rate-payers,” he said.

Among the deal’s conditions was that, if the country’s currency collapsed, there was civil unrest or its power supply was wrecked by a hurricane, flood or fire then the government would have to buy Grenlec back. Any change to the law that impaired the value of Grenlec’s assets could trigger a “repurchase event”. The price would be determined by a formula in the contract which Bowen says “had nothing to do with fair value”.

Meanwhile the rate-setting framework allowed Grenlec to pass on any increase in the oil price to consumers.

Between 2011 and 2015, Grenada’s energy costs per kilowatt hour were between four and ten times more expensive than those in the USA, although similar to some Caribbean neighbours’. In a recent press conference, Grenadian foreign minister Oliver Joseph described high electricity costs as “stifling economic growth” by putting off manufacturing companies from investing.

Gas prices are going up again today. Grenlec also said that their fees are increasing because of the rise in the cost of fuel.

— Ashleigh (@_Ashess_) July 17, 2018

As solar power costs dropped, rooftop panels could have been a cheap and clean alternative for Grenadians. But they had to get a licence from Grenlec and sell any excess electricity to them, or face up to six months in prison. The number of licences available was limited – to avoid overloading the grid at particular locations, according to WRB.

Originally, surplus electricity from rooftop solar was sold to Grenlec through a “net metering” scheme, with a ten-year fixed price of $0.17 per kWh. But, Blanchard said, this was “very costly to the company”. It was replaced with “net billing” system, under which Grenlec deducted the cost of the fuel it would otherwise have used to supply the property. According to the International Renewable Energy Agency (Irena), this “resulted in limited installation of installed capacity, as consumers perceive the payback period as too risky”.

The only problem I have with WRB and Grenlec is the monopoly on electricity. If I wanna get off the grid I should be able to

— Grenadian Christian Soldier (@nickyb_zero3) March 13, 2019

In this monopolistic system, Grenlec would have to drive any large-scale transition to renewables. This transition did not take place. Grenada achieved barely a tenth of its target to get 20% of its electricity from renewables by 2020.

The government blames the 1994 deal which it says gave Grenlec no incentive to invest in renewables. The Inter-American Development Bank agreed, saying the deal “enabled a monopolistic, fossil fuel biased development of the electricity sector, severely hampering the development of renewable energy technologies”.

WRB’s Blanchard insisted the lack of progress was “not through lack of trying” on the company’s part. He blamed Bowen’s conservative New National Party, complaining the government had not supported attempts to purchase land from the state or absent private landowners for solar and wind farms.

What’s not clicking for Grenada? Truly. We just have our renewable resources going to waste. Talk, talk, talk bit no action https://t.co/HeScr8xqBd

— 谢奈尔 (@itsShay_nell) October 22, 2020

In 2016, a World Bank-financed project led to reforms which shortened Grenlec’s 80-year license, opened up electricity generation, changed the way electricity prices were set and took away its tax concessions.

This draft law was overseen by a consultant who was paid $115,000 by the World Bank to advise on the implications of the reforms on the 1994 deal and “strategies to avert arbitration”. Two more World Bank-financed consultants then reviewed the law.

After all that, WRB argued the law was a “repurchase event” and took Grenada to the World Bank’s International Centre for Settlement of Investment Disputes (Icsid) to try and force a sale.

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Following a two-year court case and nearly $15 million in legal costs, the three Icsid arbitrators ruled in WRB’s favour. They ordered Grenada to pay the company $58m plus costs – nearly a tenth of the country’s $786m projected 2020 revenue – to buy back a share in Grenlec.

According to Bowen, the case caused such embarrassment for the World Bank that its president asked Grenada’s prime minister to make it go away with a settlement. “It was not looking pretty at all,” Bowen said, “you get the World Bank loan to change the legal framework and then it was the court arm of the World Bank who imposed such a ruling. I think there was embarrassment at the highest level of the World Bank… their programme caused us to be in this position and I think they are very very conscious of that.”

Blanchard also criticised the World Bank. “They were funding an effort that was ill-conceived and was going to potentially run down the risk of where we ended up with an Icsid case and an arbitration. Their position was that all they are doing is providing the funding. What the government does with that funding is up to the government.”

This case could have consequences for other nations. While there is no concept of “precedent” in international law, Icsid arbitrators can take “inspiration” from past rulings.

The tribunal ruled that WRB was under no legal obligation to share the government’s view of Grenada’s best interest. Martin Brauch, a legal researcher from the Columbia Center on Sustainable Investment, told Climate Home this ruling ran “dangerously close” to denying the government’s right, which is enshrined in international law, to determine the public interest and regulate accordingly. “Its decision may have that detrimental effect,” he added.

Gus Van Harten, a lecturer in international investment law at Osgood Hall law school, said that investor-state dispute settlement law is “full of these failed privatisation deals – these terribly negotiated deals”. He added that the ruling “shows how energy privatisation contracts can bind governments for generations”.

Having been forced to nationalise Grenlec, the government is now trying to sell shares in Grenlec – but does not expect to get what it paid for them. This time, Bowen said they only want to sell to Grenadians. The plan is to install a “competent management company to take it into the 21st century”.

So when things settle a bit more, we buying shares with Grenlec awa? Or we don’t trust? pic.twitter.com/hPEff4AGO1

— Krissy (@KrissyLionz) December 30, 2020

With control of energy policy, the government is aiming for at least 30% (and up to 100%) of electricity to be generated renewably by 2030. The US National Renewable Energy Laboratory estimates it has the potential for 20 MW of wind power, 25-50 MW of solar power and more than 50 MW of geothermal. The country’s electricity generation capacity is currently around 50 MW. 

Despite the bad experience, Bowen said, the government is still looking to the World Bank for support, along with other multilateral development banks and the Green Climate Fund (GCF).

Most climate finance from rich countries is in the form of loans, many of them on not so generous terms. Bowen called for grant funding. “If we get grants we can make the price come down significantly and maybe over 30 or 40 years we could cover the $63m we paid due to this whole scenario between the World Bank and ourselves,” he said.

The World Bank declined to comment.

This article was updated to clarify that the government was planning to divest shares in Grenlec, not find a new private buyer.

The post Why Grenada had to nationalise its electricity for $60m to pursue renewables appeared first on Climate Home News.

The administrative court ordered the government to pay a symbolic €1 fine to the four green groups that brought the case after France exceeded its 2015-2018 carbon budget. Campaigners described the ruling as “a historic victory for the climate”.

The court will return in the spring to decide whether to order the French government to take more stringent carbon-cutting measures, giving ministers another two months to demonstrate what they are doing to address climate change.

Cécile Duflot, director of Oxfam France, one of the four plaintiffs, said: “Today’s decision is a historic victory for climate justice. For the first time, a French court has ruled that the state can be held responsible for its climate commitments.”

“This sets an important legal precedent and can be used by people affected by the climate crisis to defend their rights,” she added.

An Oxfam spokesperson told Climate Home News that the case could allow French citizens to claim compensation from the government if they can prove the state’s climate inaction damages them personally.

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Others played down the significance of the judgement. Arnaud Gossement, law professor at the University of Paris, said: “It is difficult to rejoice in a judgement which admits only a fairly minimal fault on the part of the state.” He noted the plaintiffs’ demand for the government to pay reparations for environmental damages had been rejected by the court.

Law professor Julien Bétaille suggested the judgement was hardly damaging to the government. “So what? A ‘symbolic’ euro,” he tweeted.

Greenpeace’s lawyer Clément Capdebos defended campaigners’ enthusiasm, tweeting that the ruling was much more than just symbolic. Oxfam France’s lawyer Arié Alimi insisted the ruling established important principles on the government’s environmental obligations and compensation for its failures.

A n’en pas douter, il s’agit là d’une analyse objective et rigoureuse du jugement rendu par le TA. Plus sérieusement : carence fautive de l’Etat, préjudice écologique caractérisé, obligation générale de lutte contre le changement climatique. Symbolique ? Soyons sérieux. https://t.co/p7BSl0G5nX

— Clément Capdebos (@CCapdebos) February 3, 2021

France exceeded its 2015-18 carbon budget by 4%, emitting 18 million tonnes of CO2 equivalent a year more than planned. The transport sector exceeded its emissions limit by 11% and the building sector by 23%.

In response to the ruling, the French government acknowledged that it had failed to meet its climate objectives but that since 2017, when Emmanuel Macron succeeded Francois Hollande as president, it had “significantly stepped up” its climate efforts.

A draft climate bill to implement some of the recommendations of France’s citizens’ assembly is due to be presented to ministers on 10 February. The draft text has been criticised by campaigners as weakening the assembly’s ambition.

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The number of climate litigation cases worldwide has nearly doubled since 2017, according to a recent report by the UN Environment Programme. As of July 2020, at least 1,550 climate change cases had been filed in 38 countries.

In December 2019, the Dutch supreme court ordered its government to strengthen its 2020 emissions target, in a case brought by Urgenda.

In July 2020, the Irish supreme court quashed Ireland’s climate plan, ruling it did not specifically lay out how the country would meet its 2050 climate targets.

Environmentalists in Belgium have launched a similar case, pressuring the Belgian government to develop a more detailed climate plan. The case will be heard on 16 March.

The post Court condemns French government over climate inaction with symbolic €1 fine appeared first on Climate Home News.

Campaigners say that Shell is breaching its international climate obligations and threatening the lives of these citizens by continuing to invest billions of dollars each year in the production of fossil fuels. 

Seven environmental groups, including Greenpeace and Friends of the Earth the Netherlands, also known as Milieudefensie, filed the lawsuit against Shell in April last year, on behalf of over 17,000 Dutch citizens.

They are demanding that Shell cut its CO2 emissions by 45% by 2030 and to zero by 2050, compared to 2019 levels, in line with the toughest 1.5C temperature limit in the Paris pact. This would force one of the world’s largest energy companies to quickly phase down production of oil and gas and invest in clean energy sources instead.

Four public hearings took place in December in the district court of the Hague, where Shell has its headquarters, concluding on Thursday. A verdict is expected in May next year. 

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Campaigners have built their case on a precedent set by the ‘Urgenda case’, a major climate lawsuit taken to the top of the Netherlands court system last year.

In December 2019, the Supreme Court in the Netherlands ordered the Dutch government to cut its greenhouse gas emissions by 25% by the end of 2020, compared to 1990 levels, as its fair share to tackle climate change. The court ruled that the Dutch government was causing an “unacceptable danger” to citizens, for which it has a duty of care, by continuing to pollute. 

The victory by Dutch environmental group Urgenda was seen as a landmark moment for climate justice. 

“We are arguing that you can apply the same [duty of care] law to companies,” Sara Shaw, a campaigner for Friends of the Earth International, told Climate Home News. 

Shaw said that while climate litigation cases are becoming more common, it is unusual for the plaintiff not to claim financial damages and focus instead on setting a future course of action. 

Shell argues that climate policy should be set by governments, not companies and that forcing one energy firm to cut back on oil and gas will only have a minor impact as long as others continue to produce fossil fuels.

“The judge should not intervene with Shell’s policy. It would also be unfair to force one company to take certain climate action if states and consumers do not do so or do so insufficiently,” a lawyer for Shell told the court.

UK Supreme Court lifts ban on Heathrow airport third runway

Unlike the Dutch government, Shell is not a signatory to the 2015 Paris Agreement. But campaigners argue that Shell should help countries achieve Paris goals and accuse the company of violating human rights by undermining global efforts to keep temperature rises below 1.5C. 

“Shell’s policies put it on a collision course with international climate agreements,” said Roger Cox, the lawyer representing the group of campaigners. “It is clear that Shell’s policies continue to pose a major threat to the environment and humanity to this day. A judge can put a stop to this environmental damage,” he told the court. 

“It is impossible to achieve the Paris Agreement climate targets without regulating multinationals,” Donald Pols, chief executive of Friends of the Earth the Netherlands, told Climate Home News. 

On the company website, Shell says it is aiming for net-zero operations by 2050, which does not cover the impact of customers burning its products. The company aims to reduce its carbon intensity, the amount of CO2 emissions produced per energy unit sold, 30% by 2030 and 65% by 2050, compared to 2016 levels.

Shell’s focus on carbon intensity is problematic as it allows the company to claim it is reducing emissions while increasing the sale of fossil fuels, according to Pols. “While they should be reducing their CO2 emissions, Shell [plans to] grow their production of oil and gas by more than 34% by 2030.”

Campaigners and lawyers say the verdict of this case could set an important precedent for other climate litigation cases relating to the Paris Agreement. 

“Big polluters and fossil fuel executives should be quite nervous watching this,” said Shaw. “It would be great to see this spark a wave of climate litigation cases against corporations.”

The post Shell faces Dutch court in case testing how Paris climate goals apply to businesses appeared first on Climate Home News.

Plans for a third runway had stalled after the Court of Appeal ruled in February that the expansion was unlawful because, among other reasons, it failed to consider the Paris Agreement on climate change.

The Supreme Court overturned the ban and ruled that Heathrow’s expansion strategy was not illegal, stating that the Paris Agreement does not qualify as UK government policy. 

Tim Crosland, a lawyer at Plan B, which brought the case along with Friends of the Earth, described it as a “really dreadful ruling”.

“We have so many documents from the UK government saying that the Paris Agreement is the lynchpin of policy on climate change and that we were the ones that were instrumental in securing it,” he told Climate Home.

In his anger at the verdict, Crosland broke an embargo to reveal the outcome on Tuesday, at risk of being held in contempt of court.

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Campaigners plan to appeal the ruling in the European Court of Human Rights in Strasbourg, where they will argue that increasing aviation emissions is inconsistent with the right to life. 

Despite the ruling, Heathrow still faces major obstacles to carry out its expansion plans. The airport may now seek planning permission, but could struggle to convince a public enquiry that increasing aviation demand is compatible with the UK’s 2050 net zero target, campaigners say.

“This judgment is no ‘green light’ for expansion. With ever stronger climate policy commitments that Heathrow must meet, it remains unlikely it will ever get planning permission for the third runway,” said Will Rundle, head of legal at Friends of the Earth.

The Climate Change Committee (CCC) advised this month that if the UK is to meet its 2050 net zero goal, it will have to reduce its overall aviation emissions. There is no net airport growth in its net zero scenario, meaning Heathrow expansion would have to be offset by capacity reductions elsewhere.

“Heathrow expansion means 40 million tonnes of carbon dioxide, just from UK aviation, by 2050. They have to explain how that is consistent with the UK 2050 net zero target,” said Crosland. 

Aviation is likely to be the UK’s highest emitting sector by 2050, as it is hard to decarbonise, according to the CCC.

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Heathrow emits around 19 million tonnes of CO2 a year, more than half of UK aviation emissions. A third runway would add a projected 9 million tonnes to the airport’s total annual CO2 output.

Aviation demand projections have been thrown into uncertainty by the impact of the coronavirus pandemic, which forced airline to ground planes for much of 2020.

Without political will, the expansion plans are unlikely to happen, Friends of the Earth previously told Climate Home. Prime minister Boris Johnson, whose constituency is close to Heathrow, has been an outspoken critic of a third runway in the past.

John Sauven, executive director of Greenpeace UK, said in a statement: “Now the ball is in the government’s court, it’s hard to imagine Boris Johnson wanting to resurrect a project that makes no business or environmental sense. With a UK-hosted climate summit just a year away, the government should draw a line under this sorry saga.”

Sauven called for a frequent flyer levy to curb demand and investment in broadband to encourage video conferencing instead of business flights.

A spokesperson for Heathrow said: “Heathrow airport has already committed to net zero and this ruling recognises the robust planning process that will require us to prove expansion is compliant with the UK’s climate change obligations, including the Paris Climate Agreement, before construction can begin.”

The post UK Supreme Court lifts ban on Heathrow airport third runway  appeared first on Climate Home News.

The environmentalists are seeking a court order on the government to reduce deforestation by 60% in 2021, in line with the national policy on climate change. If this target is missed, campaigners say deforestation should stop completely for a year.

In 2019, the Brazilian government abandoned its main anti-deforestation plan, known as PPCDAm. In the same year, president Jair Bolsonaro’s first full year in office, there was a 34% increase in deforestation.

The NGOs bringing the case argue that the scrapping of PPCDAm breached the Brazilian constitution. Article 225  states “all have the right to an ecologically balanced environment” and says the government has a duty to “defend and preserve it for present and future generations”.

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They also argue deforestation breaches Brazil’s international commitments. Greenpeace Brazil’s climate and justice co-ordinator Fabiana Alves said: “Even under a totally unambitious contribution to the international Paris Agreement, Brazil is now lacking public policy, budget and staffing to guarantee the application of our national laws. We need to stop this free fall.”

Caio Borges is the coordinator of the Instituto Clima e Sociedade’s legal programme. He told Climate Home he is aware of six ongoing legal cases against the government’s deforestation policies in the last six months. Four of these are in the Supreme Court and two are in lower courts. “They complement each other in many aspects and have some overlaps,” he said.

In this case, Borges said he expects the court to rule “that there is a systemic failure by the government to fulfill its constitutional duties and obligations on the protection of the right to a healthy environment and that a major risk posed by such omission is the exacerbation of climate change impacts on vulnerable groups, the protected biomes and biodiversity”.

What the Supreme Court will order the government to do though is an open question, Borges said. “If a systematic violation of constitutionally protected rights is found, then the court could step in to correct the state failure, ordering things such as the development of action plans to curb deforestation, compulsory allocation of resources to equip the agencies and to replenish climate funds.”

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Caroline Prolo, head of the environmental law practice at the Brazilian law firm Stocche Forbes, said that this was the first time the Supreme Court has been asked to address alleged violations of Brazil’s national climate change policy which incorporates its legally binding commitments to UN Climate Change (UNFCCC).

“If successful,” she said, “it will open an avenue for other claims of climate inaction by the federal government. If the Supreme Court recognizes that the UNFCCC´s principles are transposed and may give rise to concrete obligations under Brazilian domestic law, this could help building a legal argument around the existence of a fundamental human right for a stable climate system within Brazilian law, which could in turn make the basis for many other climate litigation cases in the country.”

The court case has been formally lodged by six opposition political parties, with the backing of 10 NGOs including Greenpeace, the Climate Observatory and the indigenous peoples’ organisation APIB. A decision on precautionary measures is expected in 2021, but the final ruling could take several years to emerge.

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Climate litigation is becoming increasingly common across the world. The London-based Grantham Institute logs 412 climate lawsuits in its database, not including the US.

Norway’s Supreme Court is deliberating on calls for the Norwegian government to stop Arctic oil licenses under both the national constitution and the Paris Agreement. In April 2018, the Colombian Supreme Court ruled in favour of 25 young people and ordered the government to ensure the protection of the Amazon from deforestation to protect present and future generations.

The post Bolsonaro’s attack on the Amazon breaches Brazil’s constitution, climate lawyers argue appeared first on Climate Home News.