August 2024 Updates to the Climate Case Charts

Each month, the Sabin Center for Climate Change Law collects and summarizes developments in climate-related litigation, which we also add to our U.S. and global climate litigation charts. If you know of any cases we have missed, please email us at [email protected].

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #185:

FEATURED CASE

Maryland Trial Court Said Federal Law Preempted Baltimore’s Climate Claims Against Fossil Fuel Companies

A Maryland Circuit Court granted fossil fuel companies’ motion to dismiss the Mayor and City Council of Baltimore’s claims seeking to hold the companies liable for climate change-related injuries resulting from the companies’ alleged “sophisticated campaign of deception to misrepresent and conceal their products’ risks.” Aligning itself with the reasoning of decisions that held that New York City’s and Delaware’s claims against fossil fuel companies were preempted or largely preempted, the Maryland court rejected Baltimore’s contention that its lawsuit did not seek to regulate or impose liability for greenhouse gas emissions. The court found “that Baltimore’s complaint is entirely about addressing the injuries of global climate change and seeking damages for such alleged injuries” and that Baltimore’s explanation “that it only seeks to address and hold Defendants accountable for a deceptive misinformation campaign is simply a way to get in the back door what they cannot get in the front door.” The Maryland court concluded that federal common law applied because the case involved global emissions, that the Clean Air Act displaced federal common law related to domestic emissions, and that the Clean Air Act preempted Baltimore’s state law claims based on domestic emissions. The Maryland court further concluded that state law could not provide a remedy for claims arising from foreign emissions. The court distinguished the Fourth Circuit’s decision that the companies’ preemption defense did not create federal jurisdiction over Baltimore’s claims, citing “the heightened standard unique to the removability inquiry.” Although the Maryland court dismissed Baltimore’s claims on preemption grounds, the court also concluded—“to make the record complete”—that Baltimore failed to state claims of public and private nuisance, failure to warn, design defect, and trespass. The court also ruled that Baltimore’s Maryland Consumer Protection Act claim was time-barred. Mayor & City Council of Baltimore v. BP p.l.c., No. 24-C-18-004219 (Md. Cir. Ct. July 10, 2024)

DECISIONS AND SETTLEMENTS

Colorado Supreme Court Issued Order to Show Cause Requiring Response to Issue of Whether Boulder County and City of Boulder’s Climate State Law Claims Could Proceed

On July 16, 2024, ExxonMobil Corporation (Exxon) filed a petition for order to show cause in the Colorado Supreme Court in which Exxon asked the court to reverse Colorado District Court rulings allowing the Board of County Commissioners of Boulder County and the City of Boulder to proceed with their lawsuit seeking to hold the companies liable for climate change harms. Exxon argued that no adequate remedy was available absent review by the Supreme Court and that the district court’s rulings raised issues of significant public importance that the Supreme Court had not yet considered. On July 29, the Colorado Supreme Court ordered the Board, the City, and the district court to address why the Supreme Court should not grant the issue raised in the petition regarding “[w]hether the district court erroneously concluded that respondents’ claims could proceed under state law.” The Supreme Court denied the petition with respect to the issue of “[w]hether a Colorado tribunal may exercise personal jurisdiction over an out-of-state defendant for its alleged contributions to interstate and international GHG emissions that are not traceable to conduct in Colorado.” The responses are due by August 26, and Exxon has 14 days from receipt of the answer to reply. Earlier in July, the defendants filed a motion in the district court for certification for immediate appeal of the court’s order on the motion to dismiss. The defendants said they wished to petition the Colorado Court of Appeals for permission to appeal the question of whether federal law precludes state law claims for injuries allegedly caused by global climate change. On July 22, the plaintiffs filed a motion in the district court to direct a partial final judgment as to the court’s dismissal of defendant Suncor Energy, Inc. for lack of personal jurisdiction, so that the plaintiffs could immediately appeal the dismissal. County Commissioners of Boulder County v. Suncor Energy USA, Inc., No. 2024SA206 (Colo. July 29, 2024)

Connecticut Court Denied Exxon’s Motion to Dismiss State’s Consumer Protection Action for Lack of Personal Jurisdiction

A Connecticut trial court determined that it had personal jurisdiction over Exxon Mobil Corporation (Exxon) and denied Exxon’s motion to dismiss the State of Connecticut’s lawsuit under the Connecticut Unfair Trade Practices Act. The State alleges that Exxon engaged in a “systematic campaign of deception” regarding its products’ impacts on climate. First, the court concluded that under Connecticut Appellate Court precedent Exxon consented to jurisdiction by registering to do business in Connecticut as a foreign corporation. The court further concluded that a due process analysis was unnecessary under Supreme Court and other federal precedents. Second, the court concluded that long arm jurisdiction applied to Exxon and that exercising such jurisdiction comported with due process. The court noted that its determinations regarding long arm jurisdiction were subject to the State’s “ultimate burden” to establish jurisdiction by a preponderance of the evidence. Connecticut v. Exxon Mobil Corp., No. HHDCV206132568S (Conn. Super. Ct. July 23, 2024)

Challengers Asked Supreme Court for Stay of Power Plant Greenhouse Gas Emissions Standards After D.C. Circuit Denied Requests

On July 19, 2024, the D.C. Circuit Court of Appeals denied motions requesting a stay of the U.S. Environmental Protection Agency (EPA) 2024 final rule establishing greenhouse gas emissions standards and guidelines for power plants. Six emergency applications, including one filed by West Virginia and other states, were then submitted to Chief Justice Roberts seeking an immediate stay. Chief Justice Roberts requested a response to the applications by August 19. In the July 19 order, the D.C. Circuit concluded that the petitioners did not satisfy the “stringent requirements” for stay pending review. The court found that the petitioners did not show that they were likely to succeed on their claims that EPA acted arbitrarily and capriciously in determining that carbon capture and other emission control technologies were adequately demonstrated and that specific degrees of emissions mitigation were achievable. Citing the Supreme Court’s 2022 opinion rejecting—under the “major questions” doctrine—EPA’s earlier attempt to regulate emissions from existing power plants in the Clean Power Plan, the D.C. Circuit found that the 2024 final rule did not implicate the major questions doctrine “because EPA has claimed only the power to ‘set emissions limits … based on the application of measures that would reduce pollution by causing the regulated source to operate more cleanly[,]’ a type of conduct that falls well within EPA’s bailiwick.” The D.C. Circuit also found that the rule’s compliance deadlines in 2030 and 2032—“years after this case will be resolved”—weighed against finding irreparable harm. The D.C. Circuit asked the parties to submit a joint proposal for expedited briefing. The arguments in the applications to the Supreme Court for an emergency stay included that the final rule is “déjà vu all over again” because the final rule was “no less problematic” than the Clean Power Plan. The states contended that the final rule set “impossible-to-meet standards” that would impose “major, jarring shifts in the nation’s power market,” forcing closure of coal-fired plants. West Virginia v. EPA, No. 24-1120 (D.C. Cir. July 19, 2024), 24A95 (U.S. July 23, 2024)

Parties Dismissed Challenges to Trump Administration Actions to Preempt State Vehicle Standards

The D.C. Circuit Court of Appeals ordered the dismissal of petitions challenging the Trump administration 2019 actions that withdrew California’s Clean Air Act preemption waiver for its greenhouse gas and zero emission vehicle programs and adopted regulatory text regarding federal preemption of state requirements regarding fuel economy. The petitions had been held in abeyance since 2021. The parties filed a stipulation of dismissal after the D.C. Circuit rejected challenges to EPA’s reinstatement of the waiver in 2022. Union of Concerned Scientists v. National Highway Traffic Safety Administration, No. 19-1230 (D.C. Cir. July 25, 2024)

Fifth Circuit Sent Challenge to Investment Duties Rule on ESG Factors Back to District Court for Reconsideration Based on Loper Bright

In an appeal of a district court judgment upholding a U.S. Department of Labor (DOL) investment duties regulation that allowed employee benefit plan fiduciaries to consider environmental, social, and governance (ESG) factors such as climate change in risk and return analyses, the Fifth Circuit Court of Appeals vacated the judgment and remanded to the district court for reconsideration in light of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, in which the Supreme Court “discarded” the “decades-old Chevron deference doctrine.” The Fifth Circuit described vacatur and remand of a district court judgment in the context of intervening Supreme Court precedent as “a modest and relatively uncontroversial practice” that is “a basic feature of our judicial hierarchy.” The Fifth Circuit concluded that the “slight delay” that would result from remanding to the district court would better serve the appellate court and the circuit at large. Utah v. Su, No. 23-11097 (5th Cir. July 18, 2024)

D.C. Circuit Said FERC Did Not Adequately Explain Failures to Determine Significance of LNG Facilities’ and Pipeline’s Greenhouse Gas Emissions

The D.C. Circuit Court of Appeals found that the Federal Energy Regulatory Commission (FERC) did not adequately explain its failure to determine the environmental significance of the greenhouse gas emissions of planned liquefied natural gas (LNG) facilities in southwestern Louisiana. The court also found that FERC did not adequately assess cumulative effects of the project’s nitrogen dioxide emissions but rejected the argument that FERC failed to sufficiently consider alternatives, including an alternative that mandated use of carbon capture and sequestration. Regarding greenhouse gas emissions, the D.C. Circuit concluded that FERC provided sufficient rationales for declining to use the social cost of carbon or a significance threshold in a February 2022 interim policy statement to determine significance. The D.C. Circuit found, however, that FERC did not explain its departure from an approach to significance that it took in an earlier proceeding in which it evaluated how much a project would increase national greenhouse gas emissions. The court found that FERC’s failure to acknowledge the petitioners’ argument on this point or to explain why it did not adopt the approach was “a straightforward violation of the [Administrative Procedure Act’s] reasoned decision-making requirements.” The court acknowledged that in an earlier decision it had held that the National Environmental Policy Act (NEPA) and its regulations did not require agencies to “formally label” a project’s greenhouse gas emissions as significant or not significant, but the court said this earlier holding did not affect this case because in the orders under review FERC “did not dispute the premise that it must make a significance determination absent a sufficient explanation for not doing so in a particular proceeding.” Because of the insufficiencies in the NEPA analysis, the D.C. Circuit also found that FERC must reevaluate its public interest determination under the Natural Gas Act, but the court did not vacate FERC’s order authorizing the project. Healthy Gulf v. Federal Energy Regulatory Commission, No. 23-1069 (D.C. Cir., filed July 16, 2024)

In a second case, the D.C. Circuit Court of Appeals vacated FERC orders authorizing the construction and operation of a natural gas pipeline running through New Jersey, New York, Delaware, Maryland, and Pennsylvania. The court found that FERC’s decision “not to make a case-specific determination about the significance of the Project’s anticipated GHG emissions, in light of its own stated precedent that do so, nor to explain why it believed it could not do so, was arbitrary and capricious.” The court pointed to the earlier proceeding in which FERC had assessed the significance of greenhouse gas emissions (the same proceeding referenced in Healthy Gulf, above) and said it was unreasonable for FERC not even to acknowledge a change in position. The court also noted that in this case FERC’s “own estimates anticipate that the Project will spur enormous GHG emissions and associated costs” but that FERC declined to label the emissions as significant or insignificant in part based on an ongoing “generic proceeding” to determine whether and how FERC would conduct such determinations. The D.C. Circuit found that FERC did not explain why the pendency of the generic proceeding would affect FERC’s ability to make a case-specific determination as it had in the earlier proceeding. The court said that where FERC did not dispute, as was the case here, that it was “generally obligated to make a significance determination for each category of emissions” and instead argued that it was unable to make such a determination, it was necessary for FERC to provide an explanation. Also under NEPA, the D.C. Circuit found that FERC failed to assess mitigation strategies as required by NEPA regulations. The court rejected other NEPA arguments regarding the need to consider upstream and downstream emissions and the definition of project purpose and need. Under the Natural Gas Act, the court found that FERC acted arbitrarily by failing to respond to “material challenges to its finding of market need.” The court also found that FERC’s public interest determination was arbitrary and capricious both because it relied on the deficient determination of market need and also because it failed to conduct “any meaningful balancing” of potential environmental harms—including harms from increased greenhouse gas emissions—against the project’s benefits. New Jersey Conservation Foundation v. Federal Energy Regulatory Commission, No. 23-1064 (D.C. Cir. July 30, 2024)

D.C. Circuit Said Environmental Organization Lacked Standing to Challenge Removal of LNG Export Restriction

The D.C. Circuit Court of Appeals dismissed for lack of standing an environmental organization’s challenge to the U.S. Department of Energy’s removal of a restriction that provided that 129 billion cubic feet of LNG from a Texas facility could only be exported to countries that have a free-trade agreement with the United States. The environmental organization argued that removal of the restriction would increase actual exports, resulting in harms to its members’ interests. The D.C. Circuit found that “[t]his chain of causation is far from obvious” and further found that the organization failed to offer evidence or argument that removal of the restriction was “substantially likely to cause export volumes to increase.” The court therefore concluded that the organization failed to establish an essential element of standing and dismissed the proceeding. Sierra Club v. U.S. Department of Energy, No. 22-1218 (D.C. Cir. July 16, 2024)

Ninth Circuit Denied En Banc Reconsideration of Order Directing Dismissal of Juliana Case

On July 12, 2024, the Ninth Circuit Court of Appeals denied the Juliana plaintiffs’ motion for rehearing or reconsideration en banc of the court’s May 2024 order that granted the federal government’s petition for a writ of mandamus and directed the federal district court for the District of Oregon to dismiss the case. Each judge on the panel that issued the decision on the petition voted to deny the motion, and after the motion was distributed to the full court, no judge requested a vote on whether to rehear the matter en banc. The court also denied the plaintiffs’ motion to vacate the May order and recall the mandate. United States v. U.S. District Court for the District of Oregon, No. 24-684 (9th Cir. July 12, 2024)

D.C. Circuit Denied Requests to Stay Oil and Gas Sector Greenhouse Gas Regulations Pending Review

The D.C. Circuit Court of Appeals denied motions for stay of EPA’s final Clean Air Act rule revising new source performance standards for greenhouse gas and volatile organic compound emissions in the oil and natural gas sector and establishing emission guidelines for greenhouse gas emissions from existing sources in that sector. The D.C. Circuit found that the petitioners did not satisfy the “stringent requirements” for stay pending court review. Texas v. EPA, No. 24-1054 (D.C. Cir. July 9, 2024)

D.C. Circuit Said Scientists Lacked Standing to Challenge EPA Decision on Advisory Committee Appointments

The D.C. Circuit Court of Appeals ruled that two scientists lacked standing for their claims that EPA violated the Federal Advisory Committee Act and the Administrative Procedure Act when the agency did not appoint them to the Clean Air Scientific Advisory Committee (CASAC) after dismissing CASAC members in 2021 and conducting a new nomination and evaluation process. The D.C. Circuit found that the scientists did not demonstrate an Article III injury, including with allegations that EPA “skipped past them” to select candidates who favored more stringent regulation of air quality. Young v. EPA, No. 22-5305 (D.C. Cir. July 5, 2024)

First Circuit Rejected Challenge to Denial of Asylum Claim Based on Family’s Status as “Climate Refugees”

The First Circuit Court of Appeals denied a petition by a citizen of Guatemala and his wife and minor son challenging the Board of Immigration Appeals (BIA) affirmance of an immigration judge’s denial of the Guatemalan man’s asylum application. The man claimed that he and his family were members of a “particular social group” (PSG) defined as “climate refugees” that was eligible for asylum. The immigration judge found that the PSG of climate refugees was “too amorphous” to be legally cognizable and did not evince its “social distinction within Guatemalan society”; that the man’s “fear of poor and impoverished conditions” was not sufficient to constitute a “well-founded fear of future persecution”; and that he did not establish a nexus between the asserted PSG and any allegedly persecutory “government action.” The BIA affirmed without an opinion. The First Circuit found that the man did not meet his burden to show that the “climate refugee” PSG was legally cognizable. The court found that “the Guatemalan government’s acknowledgement that some of its citizens have been internally displaced by climate change and natural disasters plainly is not, without more, sufficient evidence to compel the conclusion that such individuals are perceived collectively as a socially distinct group within Guatemala by either the Guatemalan government or Guatemalan society.” Although the petitioner pointed to “journalistic articles” regarding risks posed to the group, including malnutrition, the First Circuit found that he failed to point to evidence suggesting that the issues were “uniquely associated” with climate refugees. The First Circuit also rejected the petitioner’s “fallback contention” that the BIA erred by summarily affirming the immigration judge’s denial. Cruz v. Garland, No. 23-1910 (1st Cir. July 1, 2024)

New York Federal Court Declined to Block Highway Project Facing NEPA Challenge

The federal district court for the Northern District of New York denied a motion for a preliminary injunction to block the Interstate 81 Viaduct Project in Syracuse. The court found that the plaintiffs did not establish irreparable harm or a likelihood of success on the merits, and also concluded that the balance of hardships and public interest weighed against injunctive relief. Regarding the merits of the plaintiffs’ arguments under the National Environmental Policy Act, the court found, among other things, that the plaintiffs were unlikely to establish that the Federal Highway Administration’s review of greenhouse gas emissions was arbitrary or capricious. The plaintiffs had argued that the environmental impact statement (EIS) “illogically predicted” that greenhouse gas emissions from the selected “Community Grid” alternative would be lower than emissions from other alternatives. The court noted that the EIS’s analysis had considered both vehicle miles traveled and vehicle speed, in conjunction with predicted shifts in traffic, and that the traffic model used for the EIS analysis included all areas where major traffic shifts would be expected. Renew 81 for All v. Federal Highway Administration, No. 5:22-cv-01244 (N.D.N.Y. July 19, 2024)

Alaska Federal Court Ordered Preparation of Supplemental EIS for Cook Inlet Oil and Gas Lease Sale

The federal district court for the District of Alaska ordered federal defendants to prepare a supplemental EIS for an offshore oil and gas lease sale in the Cook Inlet of Alaska. As a threshold matter, the court rejected the State of Alaska’s argument that the defendants could not have violated NEPA because the Inflation Reduction Act (IRA) required that the sale be held; the court agreed with plaintiffs that the IRA did not limit the defendants’ discretion “so as to render NEPA inapplicable.” The court also agreed with the plaintiffs that the Bureau of Ocean Energy Management (BOEM) improperly restricted its alternatives analysis based on its analysis of the purpose and need statement, together with the Outer Continental Shelf Lands Act and the 2017-2022 OCS Oil and Gas Leasing Program, to require or warrant inclusion in the lease sale of all or nearly all of the northern portion of the Cook Inlet Program Area. The court also found that BOEM failed to take a hard look at vessel noise impacts on Cook Inlet beluga whales. The court remanded the EIS and record of decision without vacatur and suspended the lease pending the preparation of the supplemental EIS. In their complaint, the plaintiffs alleged that BOEM failed to take a hard look at greenhouse gas emissions from the lease sale, but the court found that the plaintiffs waived this argument by failing to raise it in their opening brief. Cook Inletkeeper v. U.S. Department of the Interior, No. 3:22-cv-00279 (D. Alaska July 16, 2024)

Federal Court Declined to Vacate Wyoming Lease Sale During Supplemental NEPA Review but Barred New Drilling Permits and Surface-Disturbing Activities

The federal district court for the District of Columbia remanded without vacatur a case challenging an oil and gas lease sale in Wyoming. The court previously found that the U.S. Bureau of Land Management (BLM) erred in its assessment of groundwater and wildlife impacts and in its explanation of how its analysis of greenhouse gas emissions influenced its leasing decisions. The court found that there was “ample reason to believe” that BLM would be able to cure the deficiencies in its NEPA analysis and justify its decisions to issue a finding of no significant impact and approve the lease sale. The court also concluded that the disruptive consequences of vacatur “might not be catastrophic” but were “far from nil.” The court concluded, however, that it was appropriate to enjoin BLM from approving new drilling permits on the lease parcels or authorizing new surface-disturbing activities until the supplemental NEPA review was completed within 180 days. Wilderness Society v. U.S. Department of Interior, No. 1:22-cv-01871 (D.D.C. July 16, 2024)

Washington Federal Court Rejected Utility’s Dormant Commerce Clause Challenge to Allocation of Washington Cap-and-Invest Allowances

The federal district court for the Western District of Washington dismissed with prejudice an electric utility’s lawsuit challenging the allocation of “no-cost” allowances under Washington’s Climate Commitment Act to electric utilities that were already subject to the decarbonization mandate of an earlier statute. The utility argued that the requirement that it purchase allowances for emissions generated by its gas-fired power plant in Washington for power serving out-of-state customers while receiving no-cost allowances for power serving Washington consumers violated the dormant Commerce Clause. The court ruled that the utility could not state a cognizable dormant Commerce Clause claim because the categories of in-state and exported energy were not “substantially similar” since the energy produced for use in state was “subject to a preexisting, comprehensive regulatory regime” to which exported energy was not. The court also rejected the utility’s argument that it stated a dormant Commerce Clause claim based on the application of the Pike balancing test, which “generally stands for the principle that ‘a law’s practical effects may also disclose the presence of a discriminatory purpose.’” The court found that a Pike-based claim failed because the utility failed to allege a substantial burden on interstate commerce since “retail electric customers do not compete in a national marketplace, and any increased costs to [the utility’s] out-of-state customers must be approved by their own state’s regulatory commissions.” The court also rejected the utility’s arguments that the Climate Commitment Act discriminated against out-of-state companies or that the state regulations allocating no-cost allowances misinterpreted the statute. PacifiCorp v. Watson, No. 3:23-cv-06155 (W.D. Wash. July 15, 2024)

Oil and Gas Company Agreed to Pay $64.5 Million Penalty and Take Actions to Address Clean Air Act Violations on Fort Berthold Indian Reservation

The U.S. Department of Justice lodged a proposed consent decree with the federal district court for the District of North Dakota to resolve alleged Clean Air Act violations at oil and gas production facilities on the Fort Berthold Indian Reservation. The defendant is Marathon Oil Company, a publicly held company engaged in oil and gas production and exploration. The alleged violations included failures to obtain preconstruction and operating permits for at least 38 facilities and violations of design, operation, and maintenance requirements at no fewer than 66 facilities. The complaint alleged that the facilities unlawfully emitted thousands of tons of volatile organic compounds, carbon monoxide, methane, and other pollutants because of the violations. The consent decree requires actions to address the alleged violations, environmental mitigation projects, and payment of a $64.5 million civil penalty. The mitigation projects include a monitoring project through which the defendant will provide optical gas imaging infrared cameras to Mandan, Hidatsa and Arikara Nation Energy Division inspectors. The settlement is part of EPA’s National Enforcement and Compliance Initiative to mitigate climate change. The public comment period on the consent decree closes on August 15. United States v. Marathon Oil Co., No. 1:24-cv-00136 (D.N.D. July 11, 2024)

Owner of New York City Supermarkets Agreed to $400,000 Penalty and $13.5 Million Compliance Program to Resolve Refrigerant Violations

The U.S. Department of Justice lodged a consent decree in the federal district court for the Southern District of New York to resolve alleged violations by the owner and operator of approximately 20 supermarkets in New York City of the Clean Air Act and EPA’s refrigerant repair and recordkeeping regulations. The defendant admitted that between January 1, 2019 and December 31, 2021 it failed to comply with the regulations, known as the Recycling and Emissions Reduction Rule, including by failing to calculate refrigerant leak rates when adding refrigerants to its appliances, failing to conduct required monitoring and inspections, failing to perform necessary repairs and to retire equipment that could not be repaired, and failing to report significant leaks. The defendant also admitted that these violations led to refrigerant leak rates of 40%, 59%, and 46% in 2019, 2020, and 2021, resulting in emission of 42,094 pounds of refrigerants. The complaint alleged that these leaks “resulted in greenhouse gas emissions equivalent to over 140,000,000 miles driven by an average gasoline-powered passenger vehicle.” The consent decree required payment of a $400,000 civil penalty plus interest and also required the defendant to submit and implement a Refrigerant Compliance Management Plan. The consent decree specifies company-wide average leak rates that the defendant must achieve for four years, with stipulated penalties and corrective action requirements triggered if the rates are not achieved. The consent decree also includes an appliance repair schedule and requires use of advanced refrigerants. The defendant estimated that the consent decree’s injunctive requirements would cost $13.5 million. A public comment period on the consent decree closes on August 7. United States v. Gristede’s Foods NY, Inc., No. 1:24-cv-04981 (S.D.N.Y. July 1, 2024)

Maryland Federal Court Dismissed Securities Action Alleging Wood Pellet Producer Officers and Underwriters Made Misleading Sustainability Statements

The federal district court for the District of Maryland dismissed a securities action against senior officers and underwriters of Enviva, Inc., a biomass energy company that produces wood pellets. The plaintiff alleged that the officers misled ESG-focused investors with statements that materially misrepresented the company’s environmental sustainability, including statements regarding reduced greenhouse gas emissions from using wood pellets instead of fossil fuels to generate energy. The plaintiff further alleged that the officers’ statements and a registration statement were misleading because Enviva used whole trees rather than scrap wood to make its wood pellets, and that use of such pellets to generate energy produced greater greenhouse gas emissions than burning coal. Regarding the plaintiff’s claims regarding misrepresentations under Section 10(b) of the Securities Exchange Act of 1934 (Exchange Act) and Rule 10b-5, the court found that the plaintiff failed to allege a material misrepresentation or scienter (i.e., that the defendants acted with intentional or reckless deception). Regarding scienter, the court rejected, among other arguments, the plaintiff’s contention that the defendants were motivated to greenwash Enviva’s operations because they could lose foreign subsidies if the operations were found not to be carbon neutral. The court also dismissed claims under Section 20(a) of the Exchange Act and Sections 11 and 15 of the Securities Act of 1933. Fanucchi v. Enviva Inc., No. 8:22-cv-02844 (D. Md. July 3, 2024)

Settlement Resolved Challenge to Tahoe Regional Plan Amendments

The Mountain Area Preservation Foundation (MAP) and Tahoe Regional Planning Agency (TRPA) settled MAP’s lawsuit challenging TRPA’s adoption of amendments to the Regional Plan and TRPA Code of Ordinances that the plaintiff alleged would accelerate high-density development. TRPA agreed to consider amendments to the approvals and to include in a future phase of policy development “good faith discussions” of topics that included additional strategies for reducing vehicle miles traveled and assessment of criteria to address potential site-specific impacts, including wildfire dangers. Mountain Area Preservation Foundation v. Tahoe Regional Planning Agency, No. 2:24-cv-00441 (E.D. Cal. July 3, 2024)

Parties Settled Greenwashing Lawsuit Regarding Glad Recycling Trash Bags

The parties reached a confidential settlement in a greenwashing lawsuit alleging that Glad Recycling Trash Bags are deceptively marketed as recyclable. The complaint alleged that the deceptive marketing of the bags resulted in harms to consumers who paid an “unwarranted premium” based on the recyclable claims, endangered recycling plant workers, and harmed the environment by preventing recycling of otherwise recyclable materials. The complaint also alleged that incineration of plastic waste releases substantial amounts of carbon dioxide, contributing to climate change. The complaint asserted violations of the California Consumers Legal Remedies Act, the California Unfair Competition Law, and the California False Advertising Law, as well as an unjust enrichment claim. This lawsuit was filed in state court and then removed to federal court. An earlier lawsuit with the same parties and same claims was filed in federal court and voluntarily dismissed on the same day the second action was filed. Woolard v. Glad Products Co., No. 37-2024-00016126-CU-BT-CTL (Cal. Super. Ct., filed Apr. 5, 2024), removed & voluntarily dismissed, No. 24-cv-00829 (S.D. Cal. June 14, 2024); Woolard v. Glad Products Co., No. 3:24-cv-00504 (S.D. Cal.) (earlier lawsuit)

Pennsylvania Supreme Court Ruled that Nonprofit Groups Should Be Allowed to Defend Pennsylvania’s Participation in RGGI

The Pennsylvania Supreme Court reversed the denial of nonprofit organizations’ application to intervene in litigation challenging the Pennsylvania Department of Environmental Protection (PADEP) regulation implementing Pennsylvania’s participation in the Regional Greenhouse Gas Initiative (RGGI), a multistate cap-and-trade program for carbon dioxide emissions from power plants. The organizations sought to defend the RGGI regulation under the Pennsylvania Constitution’s Environmental Rights Amendment (ERA). The Supreme Court first concluded that it had jurisdiction over the organizations’ appeal and that the appeal was not moot. On the merits, the Supreme Court agreed with the Commonwealth Court that the nonprofit organizations established “a substantial, direct and immediate interest in the outcome of the litigation” entitling them to intervention based on alleged harms to the interests of their members that would be addressed by the RGGI regulation. Unlike the Commonwealth Court, however, the Supreme Court further concluded that PADEP did not adequately represent the organizations’ interests. The Supreme Court found that the Commonwealth Court’s analysis of the adequate representation issue unreasonably omitted the fact that PADEP “never once invoked the ERA in support of the RGGI Regulation.” The Supreme Court found that, “whatever its ultimate merit,” the ERA defense “presents a salient and nonfrivolous argument regarding the central question in this litigation of whether the RGGI Regulation is an unconstitutional tax.” The Supreme Court dismissed the organizations’ separate appeal of the Commonwealth Court’s granting of a preliminary injunction of the RGGI regulation. The Supreme Court said the Commonwealth Court’s subsequent permanent injunction rendered the appeal moot. Shirley v. Pennsylvania Legislative Reference Bureau, No. 85 MAP 2022 (Pa. July 18, 2024); Bowfin Keycon Holdings, LLC v. Pennsylvania Department of Environmental Protection, No. 86 MAP 2022 (Pa. July 18, 2024)

Court Granted New York City Leave to Appeal Adverse Decision on Local Law 97 Challenge to New York High Court

The New York Appellate Division granted New York City defendants’ motion for leave to appeal to the Court of Appeals the Appellate Division’s decision reviving a preemption challenge to the City’s law setting limits on greenhouse gas emissions from existing large buildings (Local Law 97). The Appellate Division ruled in May 2024 that the City defendants failed to show that the New York State Climate Leadership and Community Protection Act did not preempt Local Law 97. The Appellate Division certified the question of whether its order denying the defendants’ motion to dismiss the preemption cause of action and otherwise affirming the trial court’s order was properly made. The Sabin Center filed an amicus brief in support of the motion for leave to appeal. The State of New York also filed an amicus brief in support of the motion, as did a coalition of organizations that including environmental justice groups, American Institute of Architects New York, and New York League of Conservation Voters. Glen Oaks Village Owners Inc. v. City of New York, No. 2024-00134 (N.Y. App. Div. Aug. 1, 2024)

New York Appellate Court Dismissed Environmental Rights Amendment Claim Against State Defendants in Landfill Lawsuit

In a lawsuit asserting that operation of the second largest landfill in New York violated the State Constitution’s Environmental Rights Amendment, the New York Appellate Division reversed a trial court and granted New York State and the New York State Department of Environmental Conservation’s motion to dismiss. A nonprofit corporation with members residing near the landfill alleged that odors and fugitive emissions (including greenhouse gas emissions) from the landfill violated their rights under the Environmental Rights Amendment. The Appellate Division found that the plaintiff failed to state a claim against the State defendants because the only conduct by the State defendants that allegedly violated the plaintiff’s constitutional rights was a failure to take enforcement actions against the operator based on the allegedly inadequate operation of the landfill. Because the decision whether to take enforcement action involved exercise of judgment or discretion, the remedy of mandamus was not available. The appellate court affirmed the dismissal of the Environmental Rights Amendment claims against the landfill’s private operator and against New York City, which sent waste to the landfill. Fresh Air for the Eastside, Inc. v. State, No. CA 23-00179 (N.Y. App. Div. July 26, 2024)

Minnesota Court Identified Shortcomings in Environmental Review for Arena on University Campus

The Minnesota Court of Appeals found that the City of St. Paul acted arbitrarily and capriciously in its environmental review of a proposed multipurpose arena on the University of St. Thomas campus. The court found that the City should have considered the proposed arena as part of a phased action that included a university building under construction on an adjacent site. The court also found that the City’s determination that an environmental impact statement was not required was arbitrary and capricious because the greenhouse gas analysis overlooked an increase in spectator traffic from moving the hockey program and events to the St. Paul campus. In addition, the court found that the City’s mitigation measures were not specific, targeted, and certain. The court found, however, that the City’s decision to omit cooling and refrigeration systems for the ice rinks from the greenhouse gas analysis was supported by substantial evidence based on the explanation that they would use electric equipment to service the facility and “acceptable non-ozone depleting alternatives” for refrigerants. In re City of St. Paul’s Decision on the Need for an Environmental Impact Statement for the Proposed University of St. Thomas Multipurpose Arena, No. A23-1656 (Minn. Ct. App. July 8, 2024)

Massachusetts Court Denied Exxon Motions to Compel More Expansive Document Production in Commonwealth’s Action Alleging Misrepresentations Regarding Climate Risks

In the Massachusetts Attorney General’s action alleging that Exxon Mobil Corporation (Exxon) misrepresented and failed to disclose material facts about climate change risks, a Massachusetts Superior Court denied in part and allowed in part the parties’ motions (six by Exxon and two by the Commonwealth) to compel responses to document requests and interrogatories. First, the court said it would not compel further answers to Exxon’s “extraordinarily broad” requests regarding the Attorney General’s investigation and preparation of the case. The court noted that it had previously ruled that Exxon could not pursue defenses based on selective enforcement and improprieties in the investigation. Second, the court ruled that the Commonwealth only had to produce publicly disclosed and publicly available information in response to a request for documents related to the Attorney General’s involvement in rulemaking proceedings and in Massachusetts v. EPA and Kain v. Department of Environmental Protection, which Exxon contended would show that investors and consumers were generally aware of climate risks. Third, the court declined to require the Commonwealth to produce common interest agreements between the Attorney General and other state attorneys generation regarding actions against energy companies. The court allowed the request for documents related to communications with a private attorney the Attorney General considered hiring, but only prior to the date on which the Attorney General began to consider hiring the attorney. Fourth, the court denied Exxon’s requests for information about the Commonwealth’s use of fossil fuels and investment in energy companies but directed the Commonwealth to produce publicly disclosed or available documents responsive to the request for information about the Commonwealth’s knowledge about climate change causes and challenges posed by reducing fossil fuel use. Fifth, the court denied Exxon’s request for documents from other Massachusetts agencies. Sixth, the court directed the Commonwealth to provide additional explanations regarding allegedly deceptive statements were deceptive. Seventh, the court denied Exxon’s motion to compel disclosure of agencies’ internal emails regarding, among other things, purchase of fossil fuel products and knowledge about risks of climate change. Eighth, the court denied Exxon’s request to compel the developer of a wind energy project to disclose internal communications and documents regarding the project. The court stated that even if information about the project was relevant, there had been considerable public information about the project. The court also stated that it was “inconceivable to me that this case could involve the admission of internal information about a particular wind project as bearing on the deceptiveness of Exxon’s representations to its investors, consumers, and regulators in Massachusetts.” Regarding the Commonwealth’s motions, the court said it would require Exxon to adhere to initial agreements for production but would not compel Exxon to provide further response to interrogatories regarding the stranding of hydrocarbon reserves and regarding the statement “Keeps your engine 2x cleaner for better gas mileage.” Commonwealth v. Exxon Mobil Corp., No. 19-3333-BLS1 (Mass. Super. Ct. July 29, 2024)

New York Court Dismissed Lawsuit Challenging New York City Pension Plans’ Fossil Fuel Divestment

A New York trial court dismissed for lack of standing a lawsuit alleging that three New York City public employee retirement systems breached fiduciary duties by divesting from companies involved in fossil fuel extraction. Because the pension plans at issue were “defined benefit” plans in which the plaintiffs were “entitled to a fixed benefit each month and will receive the same amount regardless of whether they win or lose this action,” the court found that they did not demonstrate injury in fact. as required for standing. The court also found that allegations that the defendants’ investment decisions would have detrimental impacts on the retirement plans’ financial health were speculative; the court also noted that the plaintiffs conceded that “underfunding ultimately puts New York City taxpayers on the hook.” In addition, the court rejected the plaintiffs’ argument that their claims should be analyzed under the common law of trusts. The court also was not persuaded by the argument that the defendants’ investment decisions would evade review if the plaintiffs were found to lack standing; the court noted the availability of proceedings by the Attorney General upon a finding by the Superintendent of Financial Services of wrongful conduct or breach of fiduciary responsibility for a public pension fund. The court also rejected the plaintiffs’ assertion that they had standing as citizen-taxpayers to bring their action under General Municipal Law § 51. The court noted that the plaintiffs’ complaint did not identify this cause of action and, moreover, that such a suit would not be available absent fraud or waste that was not alleged. Wong v. New York City Employees’ Retirement System, No. 652297/2023 (N.Y. Sup. Ct. July 2, 2024)

Washington Court Allowed Economist Responsible for Fuel Cost Estimates to Proceed with Whistleblower Suit Against Washington State Defendants

A Washington trial court denied the Washington State Department of Transportation (WSDOT) and Washington State Office of Financial Management’s motion to dismiss a lawsuit by a former economist at WSDOT asserting whistleblower retaliation, wrongful termination, and negligence claims. The plaintiff alleged that he was “improperly pressured for political purposes … to change his estimates of fuel costs to fit the political narrative from the Governor that the state’s ‘cap and invest’ program under the Climate Commitment Act was costing consumers little or nothing at the gas pump.” The organization representing the plaintiff announced the denial of the motion to dismiss. Smith v. Washington State Department of Transportation, No. _ (Wash. Super. Ct. June 21, 2024)

NEW CASES, MOTIONS, AND OTHER FILINGS

Challenges to Fuel Economy Standards Consolidated in Sixth Circuit

On July 12, 2024, the Judicial Panel on Multidistrict Litigation ordered that eight cases challenging the National Highway Traffic Safety Administration’s fuel economy standards in six courts of appeal be consolidated in the Sixth Circuit Court of Appeals. The Zero Emission Transportation Association (a coalition of companies that “span the entire electric vehicle supply chain”) and four public interest organizations moved to intervene on behalf of the respondents. In re NHTSA Corporate Average Fuel Economy Standards for Passenger Cars & Light Trucks for Model Years 2027 and Beyond and Fuel Efficiency Standards for Heavy-Duty Pickup Trucks & Vans for Model Years 2030 and Beyond, No. 24-7001 (6th Cir.)

Supreme Court Review Sought of D.C. Circuit Decision Upholding California Preemption Waiver for Zero-Emissions Vehicle Program

Ohio and 16 other states filed a petition for writ of certiorari in the U.S. Supreme Court seeking review of the D.C. Circuit’s decision upholding EPA’s grant of a preemption waiver to California for its Advanced Clean Car Program regulations. Entities and associations of entities that produce or sell liquid fuels and raw materials used to make such fuels also filed a petition for writ of certiorari. The states’ petition presented the question of whether Congress “[m]ay … pass a law under the Commerce Clause that empowers one State to exercise sovereign power that the law denies to all other States.” The liquid fuels petitioners’ petition presented two questions: (1) whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties, and (2) whether EPA’s preemption waiver for California’s greenhouse-gas emission standards and zero-emission-vehicle mandate is unlawful. Ohio v. EPA, No. 24-13 (U.S., filed July 5, 2024)

Puerto Rico Filed Lawsuit Alleging Fossil Fuel Industry’s “Deception Campaigns” Caused Climate Change Harms

The Commonwealth of Puerto Rico filed a complaint in the Puerto Rico Court of First Instance alleging that fossil fuel industry defendants engaged in “successful climate deception campaigns” that misled consumers and the public about the impacts of greenhouse gas emissions from fossil fuels, which “had the purpose and effect of inflating and sustaining the market for fossil fuels and delaying the transition to lower carbon energy sources, which—in turn—drove up greenhouse gas emissions, accelerated global warming, and brought about devastating climate change consequences in the Commonwealth.” The complaint alleged that Puerto Rico and its residents have already incurred substantial expenses to clean up climate change-induced disasters like Hurricanes Irma and Maria, and will continue to spend substantial sums to adapt to the future consequences of climate change, such as sea level rise, extreme heat events, more frequent and intense storms, and ocean acidification. Puerto Rico alleged that the “Defendants’ tortious and deceptive conduct” exacerbated climate change in Puerto Rico, without which “the current physical and environmental changes caused by global warming would have been far less than those observed to date” and the “effects that will occur in the future would also be far less detrimental or would be avoided entirely.” The complaint asserted six causes of action: public nuisance, violations of the Environmental Public Policy Law, negligence and wrongful conduct, strict liability for failure to warn, punitive damages, and deceptive trade practices in violation of Puerto Rico’s Antitrust Law. The complaint requested compensatory damages; equitable relief, including abatement of the nuisances; punitive damages; injunctive relief; and the costs of suit. Estado Libre Asociado de Puerto Rico v. Exxon Mobil Corp., No. SJ2024CV06512 (P.R. TPI, filed July 15, 2024)

D.C. Circuit Requested Briefs on Loper Bright Relevance in Pending Challenges to Biden Administration Vehicle Standards

On July 29, 2024, the D.C. Circuit issued orders directing parties to submit supplemental briefing on the impact of the Supreme Court’s June 2024 decision in Loper Bright Enterprises v. Raimondo and the D.C. Circuit’s April 2024 decision in Ohio v. EPA to pending cases challenging EPA and NHTSA regulations promulgated in 2021 and 2022 concerning vehicle emissions and fuel economy. The D.C. Circuit—which heard oral argument in the cases in September 2023—asked that the parties to address to what extent Ohio v. EPA was relevant to the standing of the petitioners in these cases and to what extent Loper Bright was relevant to the statutory interpretation issues. Briefs are due August 19. Texas v. EPA, No. 22-1031 (D.C. Cir. July 29, 2024); Natural Resources Defense Council v. National Highway Traffic Safety Administration, No. 22-1080 (D.C. Cir. July 29, 2024)

Challenges Filed to Greenhouse Gas Reporting Rule Amendments Aimed at Supporting Implementation of IRA’s Waste Emissions Charge

A trade group representing companies engaged in “midstream activities” (the gathering and processing of natural gas into merchantable pipeline gas), two groups of trade associations representing oil and natural gas exploration and production companies, and American Petroleum Institute filed separate petitions for review in the D.C. Circuit challenging an EPA final rule that amended the Greenhouse Gas Reporting Rule requirements for the petroleum and natural gas systems source category. The amendments were intended to ensure that reporting is based on empirical data, accurately reflects methane emissions and waste emissions, and allows facility owners and operators to submit empirical emissions data to demonstrate the extent to which a Waste Emissions Charge is due under a Clean Air Act provision added by the Inflation Reduction Act (IRA). Independent Petroleum Association of America v. EPA, No. 24-1242 (D.C. Cir., filed July 12, 2024)

Lawsuit Sought to Compel Decision on Listing of Southern Plains Bumblebee Under Endangered Species Act

Center for Biological Diversity filed a lawsuit in the federal district court for the District of Arizona to compel the U.S. Fish and Wildlife Service (FWS) to make a 12-month finding on the organization’s petition to list the Southern Plains bumblebee as a threatened or endangered species under the Endangered Species Act. The complaint alleged that over half of native bees in the United States, including the Southern Plains bumblebee, “are suffering from declining populations due to habitat degradation and destruction, pesticide use, climate change, and other threats.” The petition, which FWS received on July 27, 2022, described the “major indirect threat” to the bumblebee that climate change poses. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 4:24-cv-00370 (D. Ariz., filed July 26, 2024)

Environmental Groups Asked Federal Court to Order BOEM to Update Air Quality Rule for Offshore Oil and Gas Operations

Environmental organizations filed a lawsuit in federal district court in the District of Columbia challenging a Bureau of Ocean Energy Management (BOEM) 2020 final rule on air quality control, reporting, and compliance. They alleged that the rule—which “scrapped” major updates proposed in 2016—“kept in place outdated and ineffective regulations governing air pollution from offshore oil and gas operations that were promulgated in 1980, rejecting significant changes that the Bureau had previously determined were needed to ensure compliance with its statutory mandates under the Outer Continental Shelf Lands Act [(OCSLA)].” The plaintiffs contended that BOEM did not provide reasoned explanations for retaining outdated regulations, including for its determination that it was unable to regulate methane pursuant to the OCSLA. The complaint asserted violations of OCSLA and the Administrative Procedure Act. The groups asked the court to issue a declaratory judgment, set aside and vacate the rule, and order BOEM to promulgate a new rule. Healthy Gulf v. Bureau of Ocean Energy Management, No. 1:24-cv-02175 (D.D.C., filed July 24, 2024)

Lawsuits in Multiple Courts Challenged BLM’s Conservation and Landscape Health Rule

Three lawsuits were filed in three different federal district courts challenging BLM’s “Conservation and Landscape Health” rule. The State of Alaska filed a lawsuit in the District of Alaska; the States of Utah and Wyoming filed a lawsuit in the District of Utah; and trade associations filed a lawsuit in the District of Wyoming. North Dakota, Idaho, and Montana also filed a lawsuit in the District of North Dakota. The defendants filed a motion requesting that this lawsuit be transferred to the District of Utah.

Alaska’s complaint alleged that the final rule “dramatically alters the goals and objectives of public lands planning and management,” overriding policies “that have governed public land planning, management, and uses for many decades.” Alaska contended that the “vast majority” of the changes were not authorized by the Federal Land Policy and Management Act, the Alaska National Interest Lands Conservation Act, or any other federal law and exceeded BLM’s delegated legal authority. Alaska asserted that the rule violated the major questions doctrine and that BLM failed to comply with NEPA. With respect to mitigation obligations that the rule imposed on public land users, Alaska alleged that climate change’s adverse impacts on public lands did not justify imposition of such requirements or grant BLM additional regulatory powers. Alaska v. Haaland, No. 3:24-cv-00161 (D. Alaska, filed July 24, 2024)

The trade associations’ complaint asserted that the rule exceeded BLM’s authority under the Federal Land Policy and Management Act, that BLM acted arbitrarily and capriciously, and that BLM did not comply with the Administrative Procedure Act’s procedural requirements. The trade associations’ claims include assertions that the Congressional Review Act barred the rule, based on Congress’s rejection of the 2016 Planning 2.0 Rule, and that the rule violated NEPA. The complaint mentioned BLM’s citing of climate change’s adverse impacts on public lands as a rationale for the rule and alleged that BLM did not explain why existing tools were inadequate to address climate change’s threats. The complaint stated that “the Supreme Court has held that ‘climate change,’ however legitimate a concern, does not excuse unlawful rulemakings.” American Farm Bureau Federation v. U.S. Department of the Interior, No. 2:24-cv-00136 (D. Wyo., filed July 12, 2024)

Utah and Wyoming challenged BLM’s reliance on a categorical exclusion for NEPA compliance. The categorical exclusion applies to “[p]olicies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case.” On July 11, Utah and Wyoming filed a motion for a preliminary injunction. Environmental organizations moved to intervene to defend the rule. Utah v. Haaland, No. 2:24-cv-00438 (D. Utah, filed June 18, 2024)

Lawsuit Sought to Compel New Environmental Review of Offshore Oil and Gas Decommissioning

Center for Biological Diversity (CBD) filed a lawsuit in federal district court in the District of Columbia alleging that the Secretary of the Interior and the directors of the Bureau of Ocean Energy Management and the Bureau of Safety and Environmental Enforcement were violating NEPA and the Administrative Procedure Act in their management of offshore oil and gas activity in the Gulf of Mexico. CBD alleged that new information showed that offshore oil and gas decommissioning was not occurring within required timeframes or in accordance with requirements, leaving idle infrastructure that posed environmental and safety risks, including risks of oil spills and risks of methane emissions contributing to climate change and increasing explosion risk. The complaint described the findings of a recent report that revealed that 2,700 wells and nearly 500 platforms were overdue for decommissioning in the Gulf of Mexico as of June 2023; that nearly 600 of the idle wells had not been temporarily plugged to prevent leaks before decommissioning; and that more than 800 idle wells had been unused for more than a decade. CBD contended that substantial changes to decommissioning had occurred since programmatic environmental assessments were prepared in 1987 and 2005, including the defendants permitting 97% of pipeline mileage in the Gulf of Mexico to remain on or beneath the seafloor. They also alleged that there were substantial new circumstances and information available about the risks posed by idle infrastructure and decommissioning in place, including information about methane emissions from unplugged and temporarily plugged wells. CBD asserted that the defendants could not continue to rely on the 1987 and 2005 assessments to approve decommissioning in place, time extensions, and other deviations from decommissioning requirements. CBD asked the court to require the defendants to complete, by a date certain, new NEPA analysis to supplement the programmatic analyses prepared in 1987 and 2005. Center for Biological Diversity v. Haaland, No. 1:24-cv-02014 (D.D.C., filed July 11, 2024)

Greenwashing Class Action Against Lululemon Alleged Misleading Statements on Greenhouse Gas Emissions Targets

A putative consumer class action filed in the federal district court for the Southern District of Florida alleged that Lululemon Athletica Inc. and Lululemon USA Inc. (Lululemon)—“one of the world’s largest and most popular ‘athleisure’ fashion brands”—had engaged in a “massive, global ‘greenwashing’ campaign” that misled consumers to believe that the defendants’ business practices, products, and actions had a positive impact on the environment. The allegations included that Lululemon made representations regarding climate change, including inclusion in its “Be Planet” marketing campaign of commitments to “[s]ource 100% renewable electricity to power the Company’s operations by 2021 and reduce carbon emissions across its global supply chain by 60% per unit of value added, meeting its Science-based Targets by 2030.” The complaint alleged that contrary to the campaign’s messages, “Lululemon has a significant and growing climate and environmental footprint, and its actions and products directly cause harm to the environment and the deterioration of the planet’s health,” with its greenhouse gas emissions more than doubling since the start of the Be Planet campaign in 2020. Specific allegations regarding misrepresentations related to the company’s greenhouse gas emission targets included that its representations regarding its target to reduce Scope 1 and 2 emissions by 60% was misleading because such emissions constitute only 3% of Lululemon’s total greenhouse gas emission and achievement of the target would therefore have only a negligible impact. In addition, the complaint alleged that the 60% reduction target for Scope 3 emissions was misleading because it was an “intensity-based” target and achievement would not necessarily result in absolute emissions reductions. The complaint further alleged that Lululemon’s representations were misleading because the company had achieved only a 7% reduction in the intensity of Scope 3 emissions. The complaint asserted a violation of the Florida Deceptive and Unfair Trade Practices Act as well as claims of misleading advertising and unjust enrichment. Gyani v. Lululemon Athletica Inc., No. 1:24-cv-22651 (S.D. Fla., filed July 12, 2024)

Federal Lawsuit Filed to Challenge Denver Electrification Requirements as Preempted

A lawsuit filed in the federal district court for the District of Colorado challenged provisions of two Denver ordinances that restrict use of gas appliances. The first ordinance—which its backers said would reduce greenhouse gas emissions from buildings by 80% by 2040—required that the Denver Building and Fire Code be amended to implement certain electrification requirements, and the second ordinance adopted the 2022 Denver Building Code, including the 2022 Denver Energy Code that implemented an initial phase of the first ordinance’s requirements. The plaintiffs asserted that provisions of these laws are preempted by the federal Energy Policy and Conservation Act. The plaintiffs sought a permanent injunction on enforcement of the laws and a declaratory judgment declaring that they were preempted by federal law and therefore void and unenforceable. Restaurant Law Center v. City & County of Denver, No. 1:24-cv-01862 (D. Colo., filed July 3, 2024)

North Dakota Attorney General’s FOIA Action Sought Documents on EPA Role in Biden Administration “Climate Agenda”

The North Dakota Attorney General filed a Freedom of Information Act (FOIA) lawsuit in the federal district court for the District of North Dakota to compel EPA to produce records in response to the Attorney General’s April 2024 request for documents regarding “EPA’s role in implementing the current administration’s climate agenda and how EPA was advancing that agenda by promulgating a variety of rules targeting coal-fired power plants with retirement-inducing costs under a variety of different statutory authorities that are unrelated to greenhouse gas emissions and climate change.” The FOIA request asked for documents and communications between June 30, 2022 and April 3, 2023 that fell within four categories, including documents and communications regarding “EPA’s power sector climate strategy” and documents and communications that included both climate change-related search terms and search terms related to other regulatory programs (e.g., coal ash, air toxics, regional haze, and particulate matter) or shutdown or retirement of coal facilities. The complaint alleged that the complaint “concerns EPA’s motivations and bases for using its various regulatory authorities to impose retirement-inducing costs on coal-fired power plants for putative climate change reasons, in an apparent attempt to end-run the West Virginia v. EPA decision.” Wrigley v. EPA, No. 1:24-cv-00129 (D.N.D., filed July 2, 2024)

Alaska Challenged BLM Rule Regarding Management of National Petroleum Reserve

The State of Alaska filed a lawsuit in the federal district court for the District of Alaska challenging of a final U.S. Bureau of Land Management (BLM) rule concerning management and administration of the National Petroleum Reserve in Alaska. A nonprofit corporation representing local and tribal governments, tribal service providers, Alaska Native Claims Settlement Act Corporations, and other North Slope-serving entities previously challenged the rule. Alaska alleged that the rule “dramatically alters management of the Petroleum Reserve to significantly curtail oil production.” Alaska asserted violations of the Naval Petroleum Reserves Production Act, the Alaska National Interest Lands Conservation Act, NEPA, and the Administrative Procedure Act. Alaska v. Bureau of Land Management, No. 3:24-cv-00144 (D. Alaska, filed July 3, 2024)

Lawsuit Said Cleanup of San Francisco Superfund Site Was Flawed, Including Because of Failure to Use Up-to-Date Climate Change Data

A lawsuit filed in the federal district court for the Northern District of California challenging the U.S. Navy and EPA’s actions in connection with the “fundamentally flawed cleanup” of the former Hunts Point Naval Shipyard Superfund site in San Francisco included allegations regarding failures to properly consider climate change. The complaint alleged that the Navy’s most recent Five Year Review used outdated data on sea level rise, Bay level rise, and groundwater rise. The plaintiff alleged that the risk of remedy failure was therefore “significantly higher than the unreasonably low assumptions made by the Navy.” The plaintiff alleged that the U.S. Navy and EPA had failed to comply with the Comprehensive Environmental Response, Compensation, and Liability Act, the National Contingency Plan, and the Federal Facilities Agreement for Naval Station Treasure Island – Hunters Point Annex. Greenaction for Health & Environmental Justice v. U.S. Department of the Navy, No. 3:24-cv-03899 (N.D. Cal., filed June 28, 2024)

Lawsuit Said New York Governor’s Halt of Congestion Pricing Violated Climate Law and Environmental Rights Amendment

Three organizations filed a lawsuit challenging New York Governor Kathy Hochul’s decision to halt the implementation of a Congestion Pricing Program in New York City that would impose tolls on vehicle traffic south of 60th Street in Manhattan and use at least $15 billion of the toll revenue for public transit capital projects. The petitioners asserted that the Governor’s decision violated obligations imposed on decisionmakers by New York’s Climate Leadership and Community Protection Act, which requires consideration of whether decisions are inconsistent with or would interfere with New York’s attainment of the CLCPA greenhouse gas emissions reduction mandates. The petitioners also asserted that the Governor’s action violated the New York Constitution’s Environmental Rights Amendment because it deprived New Yorkers of their right to cleaner air to which the State committed when it enacted the legislation authorizing the Congestion Pricing Program. Riders Alliance v. Hochul, No. 156711/2024 (N.Y. Sup. Ct., filed July 25, 2024)

Environmental Groups Said Michigan Public Service Commission Failed to Consider Line 5 Climate Impacts

Two environmental groups filed a brief in their lawsuit challenging the Michigan Public Service Commission (PSC) order approving Enbridge Energy, Limited Partnership’s application to replace and relocate a segment of the Line 5 oil pipeline crossing the Straits of Mackinac. The environmental groups argued that the PSC failed to adopt and apply any standard or methodology for quantifying and valuing the project’s climate impacts despite recognizing that it was obligated under the Michigan Environmental Protection Act to account for upstream and downstream greenhouse gas emissions. The groups filed their challenge in December 2023. Environmental Law & Policy Center v. Michigan Public Service Commission, No. 369165 (Mich. Ct. App. June 27, 2024)

Lawsuit Said Rule Barring Solar Contractors from Work on Battery Systems Would Have Adverse Climate Impacts

Solar energy groups, along with an individual solar contractor, the California Public Interest Research Group, Inc., and Center for Biological Diversity, filed a lawsuit in California Superior Court challenging a Contractors State License Board rulemaking that prohibited, with limited exceptions, solar contractors from installing, connecting, modifying, maintaining, or repairing battery energy storage systems. Petitioners alleged that the rule violated the California Administrative Procedure Act and that CSLB “compounded these legal failures” by refusing to conduct a review of the rule under the California Environmental Quality Act. The petitioner alleged that the rule would result in changes to the physical environment, largely because of the “chilling effect” the rule would have on solar and battery installations. They alleged that potential impacts included increased use of carbon-based energy, additional greenhouse gas emissions, air quality impacts, and conflicts with state and local plans to reduce greenhouse gas emissions. California Solar Energy Industries Association v. Contractors State License Board, No. 37-2024-00029818-CU-MC-CTL (Cal. Super. Ct., filed June 21, 2024)

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

FEATURED CASE

Colombia: Constitutional Court Requires Consideration of Climate Change in Environmental Impact Assessments

On July 24, 2023, a group of citizens members of two NGOs (Dejusticia and Ilex Acción Jurídica) filed a lawsuit against article 57 of Law 99 of 1993. The article establishes the definition and criteria of environmental impact assessments (EIA) in Colombia, which includes biotic, abiotic and socioeconomic elements. Plaintiffs argue that as it stands this norm does not abide by the constitutional and international human rights standards given the lack of consideration of climate change and human rights. Plaintiffs assert that even though climate change-related standards only appeared after the law was issued, failing to update the interpretation of this legal provision results in unconstitutional restrictions and interpretation issues that prevent EIA from complying with international commitments that have been ratified by Colombia and are part of the constitutional bloc.

Plaintiffs are not asking the Court to declare the unconstitutionality of the article, since this would create a legal vacuum that could eventually result in more significant violations of constitutional rights. Instead, plaintiffs ask the Court to order that the provision should be interpreted as to include climate change and human rights protection as part of the criteria to be considered when conducting an EIA. In so doing, the legal provision is updated to comply with the currently admissible constitutional standard, while its interpretation is clarified, avoiding unconstitutional applications.

The plaintiffs’ arguments are twofold: first, article 57 results in a lack of constitutional protection, violating articles 2, 79, 80, and 93.1 of the Colombian Constitution, as well as articles 1.1 and 2 of the American Convention on Human Rights, by failing to include impacts associated with climate change in the EIA criteria. Second, article 57 violates articles 7, 20, 74, 79, 80 and 334 of the Colombian Constitution, as well as articles 4.1, 5.1 and 13 of the American Convention on Human Rights by failing to include human rights violations in the EIA criteria. Plaintiffs claim that human rights and the environment are interconnected and that this should be reflected in the laws governing EIAs.

On January 12, 2024, the Constitutional Court declared the admissibility of the lawsuit, but only regarding the first argument supported in the alleged violation of articles 79 and 80 of the Colombian Constitution. The arguments relating to the violation of the legal provisions of the American Convention on Human Rights were dismissed. The Court also ordered several governmental authorities, including the Ministry of Environment and Sustainable Development, as well as NGOs such as Greenpeace Colombia, the Colombian Association of Oil and Gas, and others to provide written comments on the impacts of climate change in the interpretation of the right to a healthy environment and article 57 of Law 99 of 1993.

On July 11, 2024, the Constitutional Court found that article 57 of Law 99 of 1993 was constitutional, insofar as it is understood that EIAs must include climate change among the evaluation criteria. The Court ordered Congress to issue the necessary regulations to ensure climate change is considered when conducting activities that require EIAs. The Court also ordered the Ministry of Environment and Sustainable Development to modify and update EIA’s terms of reference. In the Court’s opinion, failing to include climate change in EIA processes would amount to a violation of the Colombian Constitution and a failure to guarantee the protection of the right to a healthy environment and sustainable development. (Challenging Environmental Impact Assessment law for failing to consider climate Change, Constitutional Court, Colombia)

DECISIONS AND SETTLEMENTS

Brazil: Court of Appeals Orders Removal of Construction Project in Permanent Preservation Area

This is a Public Civil Action (ACP) with a request for an injunction filed by the Brazilian Institute for the Environment and Renewable Natural Resources (IBAMA) on October 30th, against the Municipality of Pitimbu and private individuals due to the irregular construction of eleven properties in a permanent preservation area (APP), located on the banks of the Acaú River and in a mangrove swamp. The plaintiff points to the aggravating factor of the lack of infrastructure in the properties, which dump waste and sewage into the mangroves and the river, causing pollution and degradation to the environment. In addition, the lawsuit points to the omission of the Municipality of Pitimbu, which has never tried to effectively prevent this problem and act to preserve and defend the environment. It alleges that the municipality is neglecting its responsibility to monitor and enforce compliance with environmental regulations in urban areas by ignoring the rampant exploitation in the region. It therefore requests, as an injunction, that the individual defendants refrain from building, renovating, expanding or carrying out any act that modifies the current state of their properties, as well as that the Municipality monitor compliance with the injunction. On the merits, it requests that the 11 properties be demolished and that the defendants be ordered to repair, correct or compensate for the environmental damage caused.

At first, the injunction was granted. Subsequently, a sentence was handed down, recognizing that the properties are located in a place prohibited by environmental legislation on the banks of the river, encroaching on APP. It was also identified that they cause environmental pollution. However, the Court concluded that environmental protection was not the only value at stake, indicating that the occupation of the Acaú River was long-standing, and was made up mostly of low- to very low-income families. The Court considered that it could not grant the claim in full, in order to avoid greater social damage - loss of housing. However, given the evident responsibility of the residents for the irregular occupation and the discharge of sewage into the river, it required some precautionary measures, partially upholding the claim.

IBAMA, dissatisfied with the ruling, filed an appeal, claiming that the right to housing cannot be exercised in an absolute manner, but must respect the environmental rules that prevent construction in permanent preservation areas, such as a mangrove swamp. The Appeal was dismissed and IBAMA then filed a Special Appeal against the ruling. On May 9^th, 2019, a ruling was then handed down by the Brazilian High Court (STJ), in a Special Appeal, which upheld IBAMA’s appeal. The ruling emphasized that the legislator conferred an absolute presumption of untouchability on permanent preservation areas. In addition, it drew attention to the fact that, with the ever-increasing impact of climate change on our planet, water crises are intensifying, so these protections are even more important, and illegal occupation or exploitation of springs and the banks of watercourses, lakes and lagoons cannot be allowed as if they were necessary sacrifices to solve the housing shortage. On the contrary, it states that any private or state action, including judicial action, must take into account scientific knowledge about climate change and the risks associated with it, worrying about climate integrity. It also states that, for those who, in need, built strictly residential houses before IBAMA’s notice, it will be up to the municipality to provide them with material support, including by means of “social rent” and priority in housing programs, but this duty is neither a condition nor an impediment to the immediate execution of the court order to remove the illegitimate constructions. In its ruling the omission and negligence of the Municipality of Pitimbu was also recognized, identifying its responsibility for joint and several liability and subsidiary enforcement. (IBAMA v. Municipality of Pitimbu and others, Paraíba State, District of Caaporã, Brazil)

Colombia: Constitutional Court Finds REDD+ Project Caused Human Rights Violations 

On July 15, 2022, the Pirá Paraná Indigenous Council and the Association of Indigenous Traditional Authorities of river Pirá Paraná “ACAIPI” filed a tutela arguing the violation of their fundamental and human rights to self-determination, cultural integrity, autonomous governing and territory. Defendants in this case are the private companies that are implementing REDD+ projects in their territory and the environmental authorities in charge of authorizing and monitoring the projects.

Plaintiffs argue that the REDD+ projects violate their fundamental and human rights as a result of (i) a lack of human rights due diligence by the private companies, and (ii) the failure of the government to protect their rights. Plaintiffs contend that all climate change mitigation and adaptation measures, projects and programs must protect and ensure the enjoyment of Indigenous fundamental rights in their respective territories. Particularly, plaintiffs claim that the Colombian legal framework ought to incorporate human rights’ standards regarding the implementation of REDD+ projects to ensure mitigation measures that aim towards environmental protection do not violate human rights. Likewise, plaintiffs assert that due diligence conducted by the private companies must include human rights’ standards, which was not the case. Plaintiffs argue that the private companies deliberatively ignored and excluded the Indigenous authorities.

The case was first heard by a judge, who rejected the plaintiffs’ arguments. The judge’s reasoning is based on the subsidiary nature of the tutela mechanism, which is an expedite procedure only available in case regular mechanisms are inadequate to ensure the protection of the plaintiffs’ rights. The judge found that the plaintiffs have indeed other judicial mechanisms to challenge the defendants’ actions and declared that the tutela was not adequate in this case. Plaintiffs filed an appeal, and the Administrative Tribunal upheld the judge’s decision.

On April 28, 2023, the Colombian Constitutional Court (the Court) exercised its judicial review and selected this case for review. The case will now be heard by the Court’s Justices, who will have the opportunity to study the REDD+ projects for the first time, in what could become a precedent for other carbon emission and climate change mitigation activities particularly regarding Indigenous communities’ rights. The Court deemed it important to provide a clear judicial guideline as to the way these and similar projects are being implemented as well as whether the tutela is the adequate mechanism to challenge the projects, especially with regard to Indigenous rights.

On June 25, 2024, the Constitutional Court found that the plaintiffs’ rights to self-determination, cultural integrity, autonomous governing and territory had been violated. The Court found that the private companies charged with developing the project failed to exercise due diligence by failing to (i) include domestic and international human rights standards, (ii) obtain free, prior and informed consent, and (iii) effectively monitor the potential harms derived from the project. The Court also underscored the importance of applying an ethnic perspective to all REDD+ projects to ensure the protection of Indigenous rights.

The Court acknowledged the importance of REDD+ projects in the fight against climate change. The Court stated that these projects constitute a viable option for sustainable forest management as well as Indigenous communities’ governance, if done adequately. The Court ordered an open dialogue so Indigenous peoples can decide whether and if so, how to implement the REDD+ project in their territory in a way that guarantees the protection of their rights. Further, the Court ordered the creation and implementation of a protocol for future projects that applies an ethnic perspective and allows for monitoring the implementation of REDD+ projects in Indigenous and collective territories. (Pirá Paraná Indigenous Council and Association of Indigenous Traditional Authorities of river Pirá Paraná “ACAIPI” v. Ministry of Environment and Sustainable Development and others, Constitutional Court, Colombia)

Switzerland: Climate Protestors Are Acquitted, and Police Identification Measures Are Nullified

On July 8, 2019, around 120 climate activists occupied the entries to the UBS bank in Basel during “climate action days” organized by “Collective Climate Justice”). 4 activists chained themselves to concrete barrels. After around 5 hours, the bank filed a criminal complaint and asked the police to clear the occupation. An hour later, the police asked activists to leave and began clearing the occupation 15 minutes later by kettling the remaining protestors. Police issued 60 penal orders, subject 37 people to identification measures (incl. taking DNA samples), and arrested 40 people who spent up to 2 days in prison.

The penal orders accused activists of criminal damage (art. 144 Swiss Criminal Code, CC), coercion (art. 181 CC), unlawful entry (art. 186 CC), rioting (art. 260) and transgression of cantonal regulations (art. 16, UeStG BS). The sanctions amounted to 180 daily penalty unites (Tagessätze) with a suspension period of 3 years, plus fines (Busse). At least 5 people filed a rejection of the penal order and appeared in court. Ahead of the trial UBS withdrew its criminal complaints and reached a settlement with the activists. The public prosecutor insisted on the trial.

The court acquitted the defendants (rejecting the main charge of coercion) and the prosecutor did not appeal against the acquittal (due to a lack of appeal, no written judgement was issued). In a separate trial, activists who were subjected to police identification measures (Art. 260 Swiss Criminal Procedure Code, CPC) and non-invasive samples and DNA analysis (Art. 255 CPC) appealed against these measures with the prosecutor who rejected the appeal and subsequently with the court of appeals which also rejected it (Basel-Stadt Appelationsgericht BES.2019.150, 20.3.2020). Activists appealed to the Federal Supreme Court (Bundesgericht) which accepted the appeal and nullified the police measures of identification and DNA profiling (Bundesgericht 1B_285/2000 - leading case, 1B_286 & 294/2000, 1B_287 & 293/2020, 22.4.2021). [In a parallel case in Zürich where activists occupied a Credit Suisse branch on the same day, they were convicted of coercion and unlawful entry (Arts. 181 and 186 CC) in the first two instances (Obergericht Zürich SB210390, 18.11.2022). The activists appealed to the Federal Supreme Court and await a decision (as of 7 May 2024).] (Collective Climate Justice block UBS Bank in Basel, Switzerland, Swiss Federal Supreme Court, Switzerland)

Switzerland: Supreme Court Finds “Pilot” Climate Protestor Case Void, Overturning Suspension of Other Cases

In September 2020, several hundred people occupied the main square in front of the parliament (Bundesplatz) in Bern as part of the “Rise Up For Change” action days. After two days, the police evacuated the remaining approximately 200 people, of whom approximately 90 were arrested for several hours. Around 150 people later received a penal order accusing activists of the prevention of an official act (art. 286 Swiss Criminal Code, CC) and contempt of official orders (art. 292 CC). Around 18 people filed a rejection of penal order to enter criminal trial proceedings.

While the Bern High court rejected a request to join most of the 18 cases into a collective trial, the Regional court (first instance), declared one of the cases a “pilot” trial, and suspended all other cases until the pilot trial was finished. Despite an open appeal at the court of second instance to join the cases, the court of first instance proceeded with the pilot trial and convicted an activist in line with the criminal charges issued with the penal order (RG BE PEN 21 1011, 12.12.2022). The verdict (and the “pilot” nature of the trial) were appealed by the defendant’s lawyer. Whereas the appeal against the verdict was later withdrawn, the appeal against the “pilot” nature of the trial and the suspension of other cases were successful. To the activists, the “pilot trial” poses a risk of prejudicing their individual cases, thereby undermining their due process rights (Art. 6 ECHR).

The appeal was upheld by the second instance (OG BE BK 22 396, 15.3.2023). In a somewhat contradictory decision, the court declared the “pilot” nature of the first case void and overturned the suspension of the other cases, while still refusing to join the cases. One of the defendants appealed against this decision to the Federal Supreme Court which rejected the appeal to join the cases (BG 7N_209/2023, 10.11.2023). The defendant may possibly appeal to the ECtHR. In the meantime, most of the 18 defendants who initially filed a rejection against the penal order have withdrawn the rejection and thus accepted the criminal charges. A few activists decided to go through the courts to contest their penal orders, and if needed, to take their cases to the ECtHR in Strasbourg. The second and third trial also confirmed the charges of the penal order and convicted the defendant (for second trial, see PEN 22 361, 27.11.2023). (Bern Rise Up For Change 2020, Bundesplatz, Swiss Federal Supreme Court, Switzerland)

Switzerland: Supreme Court Acquits Climate Protestors of Coercion Charges

In the late afternoon of the Black Friday (11.29.2019), more than 50 members of the local branches of Extinction Rebellion (XR) and Climate Strike (the national pendant of “Fridays for Future”) protested and blocked the main entry of a shopping center in Fribourg. While a group of activists dressed in red silently marched in the streets surrounding the shopping center, others locked themselves to shopping carts in the entrance of the building. The police intervened and evacuated the chained activists after 2 hours. The public ministry issued 30 penal orders. 21 activists were accused of minor offenses, i.e. unauthorized demonstration (19 & 60 LDP), and contraventions to police prescriptions and public order (11 & 12 LACP) and convicted with a 500 CHF fine.

In a parallel proceeding, 9 activists who chained themselves to shopping carts were faced with coercion (art. 181 of the Swiss Criminal Code) in addition to the charges above (albeit without 12 LACP) and convicted to 15 suspended day-fines and 200 CHF fines. All activists opposed the charges. The shopping center and its trade association joined the criminal proceedings as affected parties. While the court of first instance (regional court) denied the status of parties to the shopping center and the trade association, it confirmed the penal orders. The court thereby refused to grant the activists a justificatory motive under article 17 of the Swiss Criminal Code, following the recent case law of the Federal Tribunal regarding the application of a state of necessity to acts of civil disobedience perpetrated to raise awareness of climate change (see here ‘#IfRogerknew, Lausanne Action Climat Playing Tennis in the Hall of Crédit Suisse, Switzerland’ in this database).

Most activists lodged an appeal against this decision and in its subsequent rulings. The court of second instance (cantonal court) accepted the appeal and dropped all the charges against the activists (except for a contravention to police prescriptions, art. 11 LACP). The judges observed that customers could easily access the shopping center via other entries and noted the absence of violence and damages during the action. The low intensity of the disruption could thus not justify a condemnation for coercion (art. 181 CC). The cantonal judges additionally noted that the protest was protected under the freedom of assembly (art. 22 Cst and 11 ECHR) and the freedom of expression (art. 10 ECHR).

The public ministry lodged an appeal against the cantonal court decision and demanded the conviction of the 9 activists on the grounds of coercion. In particular, the public ministry contested the application of articles 10 and 11 ECHR because the protest had happened on the private property of the shopping center. The Supreme Court (third and last instance), which had previously refused to join the proceedings of both groups, definitively acquitted the activists from the coercion charge by following the argument of the judges of the second instance. The Federal Judges confirmed the jurisprudence of the European Court in that these provisions (art. 10 and 11) could apply to demonstrations taking place in shopping centers to the extent that they are ‘place[s] of transit or [...] place[s] intended to accommodate large numbers of people. (“Block Friday”: Climate activists block shopping center for Black Friday in Fribourg, Switzerland, Swiss Supreme Court, Switzerland)

Switzerland: Supreme Court Finds No Honorable Motive Defense in Climate Protestor Case

In October 2018, during a climate march in Geneva, several activists of the Breakfree collective temporarily left the authorized demonstration to paint red hands and glue pages of the “1.5° C” IPCC 2018 report on the facade of a Credit Suisse branch. Only one activist was formally identified by the police after the protest and reported for property damage (article 144, Swiss Criminal Code; SCC). The defense pleaded non-guilty on the grounds of a state of necessity (Art. 17, SCC).

While the court of second instance accepted this argumentation, the Federal Supreme court refused it. According to the judgment, climate change could not be considered an imminent threat within the meaning of article 17 SCC (state of necessity). What is more, a state of necessity could not apply to the extent that the painting of red hands on the facade of the bank had no direct bearing on climate change and its related impacts. The Federal judges also denied the application of art. 10 and 11 ECHR to the case, stating that the painting of red hands constituted a damage to property, and as such a violent act to be excluded from the realm of the convention.

The case was then sent back to the court of second instance, where in March 2022 the judges found the accused guilty of property damage (art. 144, SCC). Drawing on article 48 of the Swiss criminal code (honorable motive), they sanctioned him with a symbolic fine (100 CHF) and to the payment of a monetary compensation to the bank. After the prosecutor lodged an appeal against this decision on the grounds that the penalty was excessively lenient, the Federal Court had to deliberate once again in March 2023 over the case. The judges, again, followed the prosecution and overturned the decision of the lower court to grant the activist an honorable motive. Assessing the Swiss climate movement as a whole, they considered that even if “the political actions of climate activists are idealistic, altruistic and therefore ethically respectable”, the attribution of an honorable motive must be excluded in cases of violence to property, or if the underlying politics is not shared by the majority of society. They added: “..with regard in particular to the radicalism of the slogans used and the messages stated, but also to the choice of the establishments targeted, the actions implemented by the collectives of climate activists are, very often, also likely to reflect, in addition to a legitimate ecological concern of their authors, an unsubtle criticism of economic freedom or of the right to private property, in an approach tinged with anti-capitalism.” Continuing, the judges took issue with “the calls for civil disobedience” during climate protests. Considering that these calls call into question “the democratic legitimacy of law (…) as well as of the authorities responsible for its application”, they concluded that climate change alone could not justify such politics. As of July 2024, the case is waiting to be judged for the third time by the Cantonal court. (Red hands on the Façade of Credit Suisse in Geneva, Switzerland, Swiss Supreme Court, Switzerland)

Switzerland: Climate Protestors at Credit Suisse Acquitted of All Charges

On September 25^th, 2019, a dozen activists from Breakfree Switzerland and Climate Strike (the Swiss equivalent of Fridays for Future) demonstrated in a pedestrian zone in front of a Credit Suisse branch in Geneva. Some were dressed in a white overall and wearing a jute bag on their head as they kneeled down and held a banner in protest against the investment of the bank in fossil fuels. After being summoned by the police, they got up and walked through the pedestrian zone until the police proceeded with their identification. At least three of the activists got convicted with a fine of 300 CHF by a police judge (court of first instance) for participating in a demonstration on public property without respecting the ban on wearing clothing designed to prevent their identification.

The three activists appealed the judgment on the grounds that the facts had not been rightly established; notably, they contested having covered their heads with jute bags. While the cantonal judges noted that doubts remained in the establishment of facts, they first and foremost noted that even if activists had had their head covered, they did not intend to prevent or render more difficult their identification by the police. The court thus freed them of the charges and reaffirmed that the protest was protected under article 11 ECHR and article 22 of the Swiss Constitution (freedom of assembly). (“Banks condemn us”, climate protest in front of Crédit Suisse in Geneva, Switzerland, Swiss Supreme Court, Switzerland)

Switzerland: Charges Against Climate Protestors Dismissed Based on the European Convention of Human Rights

In March 2019, climate protesters performed a sit-in after the end of an authorized demonstration in Geneva. They were charged with a penal order with a fine for participating in an unauthorized demonstration and refusing to comply with an official order (art. 10 of the local police regulation). After appealing the penal order, the regional court (first instance) cleared the 11 accused based on fundamental rights enshrined in the Swiss Constitution (art. 22, 16, 35, 36) and the European Convention of Human Rights (art. 11). The cantonal and federal courts confirmed this decision on the grounds of article 11 CEDH. (Climate sit-in on the Promenade de la Treille, Geneva, Switzerland, Swiss Supreme Court, Switzerland).

Switzerland: Climate Protestors Acquitted Due to Uncertainty About Size of Gathering

In May 2020, an online initiative named ‘#4m2’ enjoined participants from the Swiss climate movement to symbolically occupy various public places in Switzerland for fifteen minutes a day by silently sitting or standing in the middle of self-drawn squares. The goal of the action was to demand ‘a more sustainable post-pandemic society’. On the 6th of May, 4 people taking part in the action in Geneva were arrested and charged through a penal order with a fine of 600 CHF each for not respecting the ban on gatherings of more than 5 people (article 7c of the Ordinance 2 COVID 19) and for refusing to comply with police orders (article 10 LMDPu).

In September 2021, the regional court (first instance) was unable to determine whether the gathering involved more than 5 people and noting participants’ compliance with police orders within a reasonable timeframe, acquitted three activists of the aforementioned charges. The court convicted the remaining person on the grounds of article 10 LMDPu for its reluctance to comply with police orders, but did not pronounce a sentence (according to article 52 of the Swiss Criminal Code). (#4m2 action during COVID-19 pandemic in Geneva, Switzerland, Swiss Supreme Court, Switzerland)

Switzerland: Climate Protestors Are Charged, and State of Necessity Defense Is Dismissed

In October 2021, three Breakfree activists received a large fine (2300 CHF) for using emergency flares without permission and for polluting public space in the context of an authorized demonstration at the Place des Nations in Geneva. On appeal by two of the activists against the penal order, the court of first instance reduced the fine to CHF 200 and convicted the activists for the unauthorized use of fireworks. The court dismissed the existence of a state of necessity based on recent case law (cf. “#IfRogerknew, Lausanne Action Climat Playing Tennis in the Hall of Crédit Suisse, Switzerland” case) and noted that the use of fireworks presented a threat to the public order, which was incompatible with articles 10 (freedom of expression) and 11 (freedom of assembly and association) ECHR. (Breakfree action “End fossil finance build just transition” in Geneva, Switzerland, Court of Appeals in Geneva, Switzerland)

Switzerland: Most Activists Acquitted or Served Fines for Open-Pit Mining Protest

In October 2020, activists organized the first ZAD (Zone à Défendre) in Switzerland (ZAD de la Colline du Mormont) in the canton of Vaud. Several hundred people occupied a Holcim opencast mine to protest against open-pit mining for cement production and its impacts on climate and biodiversity. At the end of March 2021, the police evacuated all ZADists and arrested around 145 people. While around 50 were allowed to leave the zone without identity checks and about 25 people could leave after identity checks, approximately 70 people were arrested after having refused to reveal their identities. Most of them underwent identification measures (such as DNA sampling) and body searches. Several individual proceedings followed the evacuation even though Holcim withdrew its complaint. The accused who had refused to give their identities were denied their right to oppose the penal order delivered by the Public Ministry and sentenced to unconditional prison terms of two to three months for unlawful entry, prevention of an official act, and contempt of official orders (Arts. 186, 286, 292 CC).

On appeal up to the Federal Court, the judges overturned these verdicts and allowed the “unknown” activists to oppose their penal order. In the meantime, some of the unknown activists revealed their identity and successfully opposed their DNA profiling. In the trials of the activists whose identities were known to the authorities all were acquitted in the first instance of the charge of unlawful entry (the prosecution maintained the charge despite Holcim’s withdrawal of the complaint). Most were also acquitted of the charge of contempt of official orders. Several people were convicted of preventing an official act. The public prosecutor’s office has appealed against several acquittals and the Cantonal Court has overturned some of them. While some proceedings are still ongoing, most of them are over and executive judgments vary from acquittals to (suspended) fines and day-fines. (ZAD de la Colline, Holcim, Switzerland, Swiss Supreme Court, Switzerland)

Switzerland: 14 Climate Protestors Found Guilty of Unauthorized Demonstration and Traffic Violations

During a street occupation in Neuchâtel in March 2020, several Extinction Rebellion activists were charged with taking part in an unauthorized demonstration and with violating the road traffic act and the traffic regulations ordinance. Out of the 15 accused that opposed their penal order, 14 were found guilty in the first and second instance. The remaining person was acquitted in virtue of her role in the protest (legal observer). (XR road block in Neuchatel, Switzerland, High Court Neuchatel, Switzerland)

Switzerland: Climate protestors Found Guilty of Coercion and Disruption of Public Services

Since April 2022, the Swiss group “Renovate Switzerland” has organized regular traffic blockades across Switzerland to raise awareness about the climate crisis. As of now, at least three actions led to criminal trials (two in Zürich: GB230004, 27.2.2023, GB230015, 29.08.2023; one in Geneva: P/24201/2022, 27.1.2024) because the activists did not accept their penal orders. In all three cases, activists were found guilty of coercion (art. 181, Swiss Criminal Code, CC) and disruption of public services (art. 239 CC). In all three cases, defendants accepted the judgement and did not appeal to the second instance. In Switzerland, the condemnation of coercion is usually suspended for 2 years, unless the defendant violates the terms. In this case coercion leads to an entry into the criminal record. (Renovate Switzerland, Geneva Court of Appeals, Switzerland)

Switzerland: Climate Protestor Incarcerated for Failure to Pay Fine

In August 2021, XR activists glued excerpts of the latest IPCC report to the facades of public buildings in several cities, using water and flour.

Unlike in Bern where the activists were fined or received a provisional ban from the city perimeter, several people were sentenced in Lausanne in the first instance to 60 daily penalty units for damage to property under Article 144 of the Swiss criminal code. Two of the activists appealed the judgment and their case was dropped after the plaintiff (Direction générale des immeubles & patrimoine) withdrew the complaint in exchange for reimbursement of the cleaning costs. Another activist, who had filmed the action in Lausanne, did not oppose his conviction but refused to pay his daily penalty units to publicize a sentence he considered disproportionate. Until 2023, he acknowledged letters from the authorities asking him to pay his pecuniary penalty in responding something along these lines: “I will not reply to your letter because I do not wish to cooperate with a system that endangers the population through its inaction in the face of climate change”. After the authorities established that the collection procedure had failed, the accused was finally incarcerated for three months between December 2023 and February 2024. (Gluing IPCC report to public buildings, Court of Appeals in Lausanne, Switzerland)

NEW CASES, MOTIONS, AND OTHER FILINGS

Brazil: Defenses Are Presented in Oil Exploration Block Class-Action (Sector SPOT-AP2)

On November 17^th, 2023, the NGO Instituto Arayara de Educação e Cultura para a Sustentabilidade filed a public civil action (environmental class-action) against the National Agency for Petroleum, Natural Gas and Biofuels (ANP), Brazil’s Federal Environment Agencies (Brazilian Institute of the Environment and Renewable Natural Resources - IBAMA and Chico Mendes Institute for Biodiversity Conservation - ICMBio), and the Federal Government. This lawsuit is part of a set of 6 environmental class-actions filed against the 4th Bid Cycle for oil exploration blocks. The aim is to challenge the auction of oil exploration blocks located in the Potiguar Basin.

The plaintiff argues that the inclusion of this set of blocks is illegal because (i) the blocks overlap with seamount areas, which are extremely important geological formations for the region’s ecosystem; (ii) there was a lack of a technical analysis of the feasibility of the offer or environmental assessment studies; (iii) the exploration areas are located less than 100km from the coast; and (iv) they imply investment to explore for oil and gas in a region of rich biodiversity and tourism, in a climate emergency scenario. The plaintiff states that this scenario requires an energy transition towards clean energies and a reduction in GHG emissions, which is incompatible with the expansion of oil exploration. As a preliminary injunction, it is requested that the offer in the 4th Permanent Offer Cycle of the blocks in the Potiguar Basin in Sector SPOT-AP2 be suspended until the technical analysis that demonstrates the socio-environmental viability is carried out, in particular with reasoned opinions from bodies such as ICMBio and IBAMA. On a definitive basis, they request that the contested blocks be excluded from the Bid Cycle.

IBAMA, ICMBio and the Federal Government presented their defenses based on procedural arguments, such as plaintiff’s illegitimacy, the absence of environmental damage resulting from the auction and the regularity of the procedure offering the area by the ANP. Finally, they emphasized the economic benefits of oil exploration for Brazilian society and that in the International Energy Agency’s NetZero 2050 scenario, the energy matrix will still rely on oil and natural gas as primary energy and that the impacts of greenhouse gas emissions from the projects can be assessed in the environmental licensing phase under the financial burden of the entrepreneur. (Instituto Arayara vs. ANP and others on auction of oil exploration blocks in Montes Submarinos, Pernambuco’s Federal Court, Brazil)

Brazil: Defenses Are Presented in Oil Exploration Block Class-Action (Sector AM-T-82)

On December 6^th, 2023, the NGO Instituto Arayara de Educação e Cultura para a Sustentabilidade filed a public civil action (environmental class-action) against the National Agency for Petroleum, Natural Gas and Biofuels (ANP), Brazil’s Federal Environmental Agency (IBAMA), and the Federal Government. This lawsuit is part of a set of 6 environmental class-actions filed against the 4th Bid Cycle for oil exploration blocks. The aim is to challenge the auction of oil exploration blocks located in the Amazon Basin.

The plaintiff argues that the inclusion of this set of blocks is illegal as it overlaps with Conservation Units (Brazilian Protected areas), buffer zones, environmental protection areas and areas where endangered species occur. The plaintiff states that the climate emergency scenario requires an energy transition towards clean energies and a reduction in GHG emissions, which is incompatible with the expansion of oil exploration. As a preliminary injunction, it is requested that the offer in the 4th Permanent Offer Cycle of the blocks in the Amazon Basin in Sector AM-T-82 be suspended until the technical analysis that demonstrates the socio-environmental viability is carried out, in particular with reasoned opinions from bodies such IBAMA. On a definitive basis, they request that the contested blocks be excluded from the Bid Cycle.

In March 2024, IBAMA and ANP presented their defenses, stating that the alleged overlapping of an exploration block with Conservation Units does not mean that it should be excluded from the bidding phase, in accordance with current regulations, but that sensitive areas are observed in the procedure. They emphasized the economic benefits of oil exploration for Brazilian society and that in the International Energy Agency’s NetZero 2050 scenario, the energy matrix will still rely on oil and natural gas as primary energy and that the impacts of greenhouse gas emissions from the projects can be assessed in the environmental licensing phase under the financial burden of the entrepreneur. The ANP clarified that it promotes social participation before bidding for oil and natural gas exploration rights. They emphasized that simply holding an auction process does not impose a risk on the environment.

On March 1st, 2024, the Federal Government filed its defense. In addition to addressing the licensing issues already dealt with by other federal bodies, it claimed that the offer of the contested blocks is technically supported by the rules issued by the competent bodies. In March 2024, Atem Participações S.A. filed a defense in which it stressed that the bidding process does not pose a risk to the environment and that all the impacts of the projects to be explored will be assessed during the environmental licensing phase. (Instituto Arayara vs. ANP and others on auction of oil exploration blocks in the Amazon Bazin, Amazona’s Federal Court, Brazil).

Estonia: Lawsuit Filed to Stop Operation of State-Owned Shale Oil Plant

In May 2024, the Estonian Environmental Board issued an integrated permit to the new state-owned Enefit280-2 shale oil plant, allowing it to operate until the end of 2034. Following the Supreme Court ruling in Fridays for Future Estonia (MTÜ Loodusvõlu) vs. Eesti Energia regarding the construction permit issued to the same plant (https://climatecasechart.com/non-us-case/11477/), Fridays for Future Estonia filed another claim in June 2024 to stop the operation of the plant.

There are two claimants in the case: MTÜ Loodusvõlu, the legally registered NGO of Fridays for Future Estonia, and Elo-Lee Maran, a young activist in the movement. The claimants argue that the Environmental Board should have refused to issue an integrated permit to the plant, because operating the plant causes carbon emissions, thereby hindering the achievement of the targets set out in the Paris Agreement and the National Energy and Climate Plan. Estonia has a national emission reduction target set for 2035 and to meet this, the Board issued the permit with a deadline, allowing the plant to operate until the end of 2034. However, the plant would increase Estonia’s yearly greenhouse gas emissions by about 6%, therefore diminishing Estonia’s share of the global carbon budget. The plant’s emissions would also hinder the achievement of the emission reduction target set out in the National Energy and Climate Plan 2030 in 2019, whereby Estonia should reduce its emissions by 70% (or to about 10.5 million tons) by 2030 compared to 1990. Additionally, MTÜ Loodusvõlu claims that the Board should have assessed the cumulative environmental impact of mining oil shale and producing oil from it. Overlooking the cumulative impact on nearby affected Natura 2000 areas constitutes a violation of the EU habitats’ directive. Furthermore, Elo-Lee Maran argues that, by aggravating the climate crisis, the operation of the plant violates her right to a healthy environment, as stipulated in national as well as international law. She also argues that the Environmental Board overlooked its obligation, stemming from the UN Convention on the Rights of the Child, to set her best interests first when deciding on the permit. The Board did not pay any attention to the fact that worsening the consequences of climate change and depleting the ever-smaller carbon budget, which would require Estonia to limit people’s basic freedoms intensely in the future to limit climate change, are not in the best interests of a child.

Promptly after filing the case, the Tallinn Administrative Court accepted the case and applied temporary interim protection, forbidding Enefit Power AS from beginning the operation of the plant until July 12^th, 2024. On July 12th, the court refused a motion for further interim protection. The Court also ordered the Environmental Board to respond to the case by the beginning of August 2024. (Fridays for Future Estonia vs. Environmental Board, Tallinn Administrative Court, Estonia)

Switzerland: Climate Protestors Bring Supreme Court Decision to European Court of Human Rights

In November 2018, climate activists wearing sports clothes and wigs simultaneously staged tennis matches in local branches of Credit Suisse in Lausanne, Basel and Geneva to protest the bank’s fossil fuel investments and pressure tennis star Roger Federer to end his sponsorship arrangement with the institution. Whereas in Geneva and Basel the activists got away with it, the activists from the collective “Lausanne Action Climat” were charged with trespassing and fined 21,600 Swiss Francs ($22,000) on the grounds of unlawful entry (art. 186 CC), prevention of an official act (art. 286 CC) and various violations of local police regulation.

On January 13, 2020, Judge Philippe Colelough concluded on appeal that the activists had acted proportionately to the imminence of climate danger and waived the fine. He wrote, “Because of the insufficient measures taken to date in Switzerland, whether they be economic or political, the average warming will not diminish nor even stabilize, it will increase,” the judge explained. “In view of this, the tribunal considers that the imminence of danger is established. The act for which they were incriminated was a necessary and proportional means to achieve the goal they sought.”

The acquittal was overturned by the Swiss Court of Appeals in Renens on September 22, 2020. The Court convicted the defendants and ordered them to pay fines of up to 150 francs ($160). The Court reasoned that although the danger from climate change is imminent, the protesters could have used other means to protest against the bank and had thus violated the absolute subsidiarity principle. The third instance confirmed in substance the cantonal judges’ decision. In a ruling that is shaping other criminal trials of Swiss climate activists to this day, the court opposed the application of a state of necessity to the case, arguing that climate change could not be understood as an “imminent danger” in the sense of the law, nor that it threatened the individual legal assets of the activists. The judges also dismissed the application of articles 10 & 11 CEDH (freedoms of expression and assembly) since the protest took place on private property of the bank. After this key decision by the Supreme Court, further appeals and counterappeals have been exchanged between activists and their lawyers, and the prosecution. Essentially, the parties have been in disagreement as to whether the activists had hindered the police during the evacuation and whether the protest was protected under Art. 10 and 11 (freedom of expression and assembly) of the ECHR or not.

As of July 2024, the case is pending before the European Court of Human Rights in Strasbourg, where the activists are challenging the Swiss government on the ground of the violation of their fundamental rights to freedom of expression and assembly. (#IfRogerknew, Lausanne Action Climat – Crédit Suisse, Switzerland, Swiss Supreme Court, Switzerland)

Switzerland: Judge Is Forced to Recuse Due to Bias in the Context of Swiss Climate Trials

In June 2020, XR organized an unauthorized - but publicly announced - demonstration in Zürich under the slogan “No Going Back”. After about 20 minutes, the police issued a warning to all participants occupying the Quaibrücke to leave the bridge. After 40 minutes the remaining approximately 250 people were kettled and arrested. The public prosecutor’s office has issued penalty orders for coercion (Art. 181 CC) and disruption of public transport (Art. 239 CC).

In October 2021, XR organized another unauthorized demonstration in Zürich under the slogan “Rebellion Against Extinction”. About 180 individuals were arrested throughout a week of protest. Some spent up to two days in jail. Similar to the Quaibrücke action in 2020, the public prosecutor’s office has charged all arrested with coercion (Art. 181 CC). For both actions combined, more than 30 individuals have objected to their penal orders (some of the activists received a penal order for both actions). Thus far, almost all of them have been trialed in the court of first instance (with 7 acquittals) and half of them in the court of second instance (with 3 acquittals). At least 9 individuals have appealed against their convictions to the Federal Supreme Court (court of third instance) and a smaller group plans to appeal further to the European Court of Human Rights (ECtHR), should their conviction be confirmed by the Supreme Court.

Three interrelated issues became central to both actions and the ensuing criminal proceedings: a) the role of judges as impartial decision-makers, b) the application of the European Convention on Human Rights (ECHR) in cases of unauthorized protests, and c) the question of coercion (Art. 181 CC). Two acquittals in the court of first instance (BzG ZH GB220099, 30.8.2022; GB220026, 31.8.2022) have raised a lot of attention because District Judge Harris announced to judge all future defendants in related climate cases on the basis of case law of the ECtHR that foregrounds freedoms of expression and assembly under Arts. 10 and 11 of the ECHR.

The chief prosecutor then filed a request for recusal of the judge, which was granted by the Cantonal Court (OG ZH UA220042, 14.11.2022). Two activists who were affected by this recusal appealed against this decision by the Cantonal Court to the Federal Supreme Court. The Federal Supreme Court accepted the appeal of both activists, insofar as it revoked the decision of the Cantonal Court not to grant the accused party status in the recusal proceedings (BG 1B_10/2023, 6.4.2023). The Cantonal Court had to review its decision to recuse Judge Harris once again and confirmed its initial decision. Meanwhile, the Cantonal Court accepted the prosecution’s appeals and overturned both of Judge Harris’ acquittals (OG ZH SB220594, 11.4.2023; SB220583, 13.4.2023). Eventually, the Federal Supreme Court confirmed the decision to recuse Judge Harris (BG 7B_601/2023, 22.3.2024).

This successful case of forced recusal of a judge is the only such request ever that was lodged by prosecution to dismiss an allegedly biased judge in the context of Swiss climate trials. There appears to be no successful case of recusal of a judge despite several such requests lodged by the defense. Throughout all proceedings and court instances in both cases, judges had to decide if the charge of coercion is justified and the defendant thus guilty, or if the intensity of coercion was small enough to grant an acquittal, considering the peaceful nature of the protest. When judges did acquit the defendants from the charge of coercion, they did so only if the defendant occupied a public road for a few minutes (low intensity). Only in a few instances have judges acquitted defendants who occupied the road for a longer period: In two cases it was Judge Harris who justified the acquittal with the case law of the ECHR (as above). In another instance it was a judge in Bern who had to decide over a case where an activist was accused for two different occupations, one in Zürich (RGA) and another in Bern. Here, the Bernese judge dismissed the charge of coercion although it was established that the defendant occupied the road for 1.5 hours (PEN 22 704, 9.3.2023). To the judge, it was unclear who was coerced and how. In Switzerland, the conviction of coercion is usually suspended for 2 years, unless the defendant violates the terms. In this case coercion leads to an entry into the criminal record.

While appeals by several defendants are pending at the Federal Supreme Court, 5 UN Special Rapporteurs* have positively responded to a separate appeal by the defendants by issuing an official letter to the Swiss government (AL CHE 7/2023, 29.1.2024). In that letter, the Rapporteurs express their concerns over the apparent restrictions of fundamental rights to freedom of expression and peaceful assembly. The Rapporteurs further emphasize that civil disobedience is in line with international law in relation to human rights. The Rapporteurs also express concerns over extended arrests of the activists and an allegedly limited access to legal representation. *David R. Boyd, UN Special Rapporteur on human rights and the environment; Irene Khan, freedom of expression and opinion; Clément Nyaletsossi Voule, freedom of peaceful assembly and of association; Mary Lavwlor, human rights defendors; Margaret Satterthwaite, independence of judges and lawyers. (XR Switzerland – No Going Back & Rebellion Against Extinction Swiss Supreme Court, Switzerland)

Switzerland: Prosecution Appeals Acquittal of Climate Protestor Charges

In January 2020, about 30 persons demonstrated before and inside the premises of an UBS branch in Lausanne. Among them, 22 activists stained the floor of the bank lobby with coal to protest against the bank’s fossil investments. After the intervention by the police, 22 activists received a penal order from the public ministry for damage to property (Art. 144 Swiss Criminal Code, CC), trespassing (Art. 186 CC) and various contraventions of the police regulations (41 RGP, unauthorized demonstration; 26 RGP disruption of public order). UBS joined the charges as the affected party. 7 of the activists opposed their penal order. After dismissing the validity of the complaint filed by UBS on procedural grounds, the judge of the regional court of first instance dropped the charge of trespassing and acquitted the activists of damage to property, charging them with a symbolic fine of 100 CHF for taking part in an unauthorized demonstration in January 2022 (contravention of the police regulations).

On the prosecutor’s and defendants’ appeal, the cantonal court of second instance confirmed the verdict of the first instance in November 2022, thereby refusing to acquit the activists on the grounds of article 11 CEDH (freedom of expression). Since the prosecutor appealed this decision, the proceeding is currently pending before the Federal Court (as of July 9^th, 2024). (UBS bank occupation in Lausanne, Switzerland, Swiss Supreme Court, Switzerland)