Climate Litigation Updates (March 2025, Part 2)
Starting this month, the Sabin Center for Climate Change Law will collect and summarize developments in climate-related litigation twice each month. We also add these developments 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 U.S. CLIMATE CASE CHART FOR UPDATE #193:
FEATURED CASES
Federal Court Temporarily Enjoined EPA’s Termination of Greenhouse Gas Reduction Fund Grants
On March 18, 2025, the federal district court for the District of Columbia issued a temporary restraining order (TRO) enjoining the U.S. Environmental Protection Agency (EPA) from taking actions to implement the termination of three nonprofit financial institutions’ (plaintiffs’) grants under the National Clean Investment Fund (NCIF). The TRO also enjoined Citibank from moving or transferring the grant funds. EPA established the NCIF under the Inflation Reduction Act’s Greenhouse Gas Reduction Fund to provide financing for clean technology projects. EPA awarded the grants to the three plaintiffs under the NCIF in April 2024, and the grant funds were disbursed to accounts at Citibank pursuant to agreements between Citibank and the U.S. Department of the Treasury and between Citibank, EPA, and the plaintiffs. After EPA Administrator Lee Zeldin announced on February 12, 2025 that EPA planned to take control of the grant funds, Citibank stopped releasing funds to the plaintiffs. Plaintiff Climate United Fund filed a lawsuit on March 8 and filed a TRO motion two days later. The other two plaintiffs—Coalition for Green Capital and Power Forward Communities, Inc.—filed their lawsuits on March 10 and March 11, respectively. (Their lawsuits were originally filed in the Southern District of New York but were voluntarily withdrawn and refiled in the District of Columbia.) On March 11, EPA sent letters to the plaintiffs advising them that it was terminating the grants effective immediately. In its decision granting the TRO motion, the court rejected the EPA defendants’ argument that jurisdiction for the plaintiffs’ lawsuits challenging the terminations lay with the Court of Federal Claims. The court concluded that the plaintiffs were challenging agency action, not bringing “simple breach of contract claims.” The court also rejected EPA’s contention that the TRO request was moot because EPA terminated the grants after the TRO motion was filed. On the merits of the TRO request, the court found that because it could not find that EPA complied with the required procedures and regulations governing the termination of federal awards, the plaintiffs showed a substantial likelihood of success on the merits. The court also found that the plaintiffs made a sufficient showing of irreparable harm because the plaintiffs were reliant on the grant funds for both day-to-day activities and the financing of projects and would have to cease operations without the funds. In addition, the court concluded that balancing the equities and the public interest supported granting a TRO. The court found that a TRO preserving the status quo would not significantly harm EPA or Citibank and that there was a public interest in ensuring governmental agencies abide by federal laws. On March 21, the plaintiffs filed a consolidated motion for preliminary injunction. Climate United Fund v. Citibank, N.A., No. 1:25-cv-00698 (D.D.C., filed Mar. 8, 2025); Coalition for Green Capital v. Citibank, N.A., No. 25-cv-735 (D.D.C.); Power Forward Communities, Inc. v. Citibank, N.A., No. 1:25-cv-00762 (D.D.C.)
A fourth related lawsuit was filed in the federal district court for the District of Columbia on March 19 by four state “green banks” that were subawardees supported by Coalition for Green Capital’s grant under the Greenhouse Gas Reduction Fund. On March 25, the court consolidated this case with the cases brought by the nonprofit financial institutions. The state green banks asserted that the Trump administration’s actions violated the Administrative Procedure Act because they were contrary to law under the Inflation Reduction Act and the Impoundment Control Act and were ultra vires, were contrary to the Uniform Grant Guidance regulations, and were arbitrary and capricious. In addition, the green banks asserted an equitable ultra vires claim to enjoin the federal agency defendants from taking actions outside their authority. They also asserted separation of powers claims, alleging that the defendants’ conduct usurped legislative functions and violated the Appropriations Clause, Spending Clause, Legislative Vesting Clause, and Take Care Clause. They also alleged that the defendants’ actions to freeze the state green banks’ accounts violated the Spending Clause and the Tenth Amendment. Against Citibank they asserted breach of contract, specific performance, conversion, and replevin claims. California Infrastructure & Economic Development Bank v. Citibank, N.A., No. 1:25-cv-00820 (D.D.C., filed Mar. 19, 2025)
U.S. DECISIONS AND SETTLEMENTS
Supreme Court Denied Juliana Plaintiffs’ Certiorari Petition
The U.S. Supreme Court denied youth plaintiffs’ petition for writ of certiorari seeking review of the Ninth Circuit’s May 2024 order directing the federal district court for the District of Oregon to dismiss their second amended complaint in the climate change lawsuit they filed in 2015. The second amended complaint sought a declaration that the U.S.’s national energy system and a federal energy statute providing for authorizations of certain natural gas imports and exports violated the Constitution by causing harmful conditions that result from climate change. The district court had allowed the plaintiffs to amend their complaint after the Ninth Circuit ruled in 2020 that the plaintiffs lacked standing because their alleged harms from climate change were not redressable by the courts. In 2024, the Ninth Circuit granted the federal government’s petition for writ of mandamus and ordered the court to dismiss the case, rejecting the plaintiffs’ arguments that the Ninth Circuit’s mandate did not preclude amendment and that an intervening Supreme Court decision changed the law on redressability of declaratory judgments. Juliana v. United States, No. 24-645 (U.S. Mar. 24, 2025)
D.C. Circuit Said Remand Without Vacatur Was Appropriate for FERC Procedural Missteps on LNG Terminal Reviews
The D.C. Circuit Court of Appeals partially granted project applicants’ petitions for panel rehearing of the court’s August 2024 decision vacating the Federal Energy Regulatory Commission’s (FERC’s) reauthorization of two liquefied natural gas (LNG) terminals and an associated pipeline in Texas. The court found that although FERC had made “unjustifiable” procedural choices to skip certain steps, these “procedural missteps, though important, are not so fundamental as to justify throwing the projects and those reliant upon them into disarray.” The court declined to resolve disputes regarding the impacts of two intervening executive orders issued by President Trump that revoked a 1994 executive order on environmental justice and limited the scope of environmental considerations to be weighed by agencies, though the court noted that the orders might be “highly relevant” to FERC’s proceedings on remand. City of Port Isabel v. Federal Energy Regulatory Commission, Nos. 23-1174, 23-1221 (D.C. Cir. Mar. 18, 2025); City of Port Isabel v. Federal Energy Regulatory Commission, Nos. 23-1175, 23-1222 (D.C. Cir. Mar. 18, 2025)
Federal Court Denied Government’s Voluntary Remand Request for Reconsideration of Offshore Oil and Gas Leases
The federal district court for the Central District of California denied the Bureau of Safety and Environmental Enforcement (BSEE) and other federal defendants’ motion for voluntary remand in a lawsuit challenging BSEE’s authorizations of extensions of ExxonMobil Corporation’s offshore oil and gas leases on the Pacific Outer Continental Shelf after a 2015 oil spill involving an onshore pipeline that transported oil produced in the Santa Ynez Unit in the Santa Barbara Channel. The court said it was “not convinced” that BSEE’s submissions established “an intent to seriously reconsider or re-review its decision,” which the plaintiffs had challenged as improperly relying on categorical exclusions under the National Environmental Policy Act and failing to consider harms (including contributions to climate change) in the national interest determination made under the Outer Continental Shelf Lands Act. Center for Biological Diversity v. Burgum, No. 2:24-cv-05459 (C.D. Cal. Mar. 21, 2025)
Federal Court Rejected Preemption Challenge to New York City Prohibition of Fossil Fuel Combustion in New Residential Buildings
The federal district court for the Southern District of New York held that the federal Energy Policy Conservation Act of 1975 (EPCA) did not preempt New York City’s 2021 law that generally prohibits combustion of natural gas and heating fuel in new residential buildings. The EPCA preemption clause provides that upon the effective date of an energy conservation standard for a covered product, “no State regulation concerning the … energy use … of such covered product shall be effective with respect to such product.” “Energy use” is defined as “the quantity of energy directly consumed by a consumer product at point of use, determined in accordance with test procedures” established under EPCA. The district court declined to adopt the Ninth Circuit’s interpretation of the term “energy use” in the preemption provision in California Restaurant Association v. City of Berkeley (CRA v. Berkeley), which held that EPCA preempted Berkeley’s ordinance prohibiting installation of natural gas piping in newly constructed buildings. The court agreed with the dissenting judge in CRA v. Berkeley that because EPCA is a “technical statute,” the term “point of use” in the definition of “energy use” should be interpreted in accordance with its “specialized” meaning, which the court concluded referred to “a predetermined fixed value that measures the characteristics of a covered product as manufactured,” rather than to the “place where something is used” as the CRA v. Berkeley majority held. The New York district court further concluded that the New York City law did not “relate to” or “concern” “energy use” within EPCA’s meaning because the law did not focus on applicable performance standards for covered products but instead “regulates, indirectly, the type of fuel that a covered product may consume in certain settings, irrespective of that product’s energy efficiency or use.” The court described this as a type of regulation “integral to municipal construction and fire codes.” The court also said the local law did not “reference” EPCA’s subject matter because it did not affect performance standards applicable to covered products. In addition, the court found that the law did not have a significant impact on congressional objectives for EPCA to eliminate burdens on manufacturers. Association of Contracting Plumbers of the City of New York v. City of New York, No. 1:23-cv-11292 (S.D.N.Y. Mar. 18, 2025)
Federal Court Allowed Plaintiff to Proceed with Parts of Challenge to San Francisco Superfund Site Cleanup
The federal district court for the Northern District of California granted in part and denied in part the U.S. Navy and U.S. Environmental Protection Agency’s motion to dismiss a lawsuit challenging the cleanup of the former Hunts Point Naval Shipyard Superfund site in San Francisco, including for failing to properly consider climate change. The court allowed the plaintiff to proceed with a claim challenging the adequacy of the fourth and fifth Five Year Review determinations under the Comprehensive Environmental Response, Compensation, and Liability Act that remedial actions underway were protective of human health and the environment. The complaint’s allegations included that the fourth review did not properly account for sea level rise, Bay level rise, and groundwater rise data. Greenaction for Health & Environmental Justice v. U.S. Department of the Navy, No. 3:24-cv-03899 (N.D. Cal. Mar. 13, 2025)
Alaska Federal Court Upheld Fisheries Service Decisions Not to Supplement EIS for Groundfish Harvesting to Consider Changes in Environmental Conditions
The federal district court for the District of Alaska rejected claims that the National Marine Fisheries Service (NMFS) did not adequately consider the current environmental context when it adopted 2023–2024 and 2024–2025 groundfish harvest specifications in the Bering Sea and Aleutian Islands region. The court found that the annual harvest specifications were within the scope of a 2007 environmental impact statement (EIS) and that NMFS had explained its conclusion that supplementation of the EIS was not necessary to address new information, changed circumstances, or proposed changes to harvest strategy. The court rejected the plaintiffs’ contention that new information, including an “unprecedented” warming period in the Eastern Bering Sea from 2014 to 2021, necessitated preparation of a supplemental EIS. The court found that “NMFS’s conclusion—that the new information is not of a scale or scope to place it outside what was considered in the [2007] EIS—is inherently a factual determination that NMFS makes based on its expertise.” The court also found that the plaintiffs did not provide reasons for supplementing a 2004 programmatic EIS that was incorporated by reference into the 2007 EIS. Association of Village Council Presidents v. National Marine Fisheries Service, No. 3:23-cv-00074 (D. Alaska Mar. 11, 2025)
Hawaii Federal Court Said Fisheries Service Provided Inadequate Justification for Decision Not to Adopt Regulations to Protect Corals from Climate Change Threats
The federal district court for the District of Hawaii ruled that the National Marine Fisheries Service (NMFS) had failed to provide a reasoned explanation for its determination not to issue regulations under the Endangered Species Act (ESA) to protect threatened coral species in the Caribbean and the Indo-Pacific from the threats of climate change or to protect the Caribbean coral species from the localized threats of overfishing, water pollution, and habitat degradation. The lawsuit concerned NMFS’s May 2021 denial of Center for Biological Diversity’s (CBD’s) 2020 rulemaking petition requesting that NMFS promulgate regulations under ESA Section 4(d) to protect 20 threatened coral species. As a threshold matter, the court held that CBD had standing to bring the lawsuit based on alleged injuries to CBD members who had snorkeled and dove in the Indo-Pacific and Caribbean, had concrete plans to return to those areas, and alleged that “ongoing threats to corals imperil their continued observation and enjoyment of coral reefs.” On the merits, the court noted that NMFS had found climate change-related ocean warming, ocean acidification, and disease to be the greatest threats to the coral species but had concluded (1) that Section 4(d) regulations would have “limited effectiveness,” (2) that interagency consultation under ESA Section 7 would be “a more effective way” to address threats to the species, and (3) that promulgating Section 4(d) regulations would take resources away from higher priorities. The court found that these “conclusory assertions” were not sufficient even under the applicable “highly deferential” standard of review because NMFS failed to adequately state the reasons for its conclusions. Regarding the effectiveness of regulations, the court acknowledged that “[g]iven the scale and complexity of climate change, it is undoubtedly true that any regulation addressing it would have at most a ‘limited’ effect in addressing the problem,” but the court went on to state that the limited effect did not explain “why it is not still necessary and advisable to enact that regulation” because “[a] collection of limited effects can, after all, add up to something more significant.” The court said NMFS did not “necessarily need[] to cite directly‐on‐point data or studies to conclude that a proposed regulation would have no discernable effect in addressing a problem” but that NMFS’s denial “says nothing about why (or how) it might have judged the proposed Section 4(d) regulations to be as ineffective as it (supposedly) did.” The court similarly found that NMFS failed to offer reasons for its two other justifications for declining to promulgate regulations to address climate change threats. The court also found that NMFS did not provide a reasoned explanation for its conclusion that regulations to address localized threats to Caribbean corals were not necessary or advisable but found that NMFS did sufficiently explain its decision not to adopt regulations to address local threats to Indo-Pacific corals. (NMFS explained that eight of the 15 listed Indo‐Pacific corals occurred only outside of U.S. waters and that within U.S. waters, most activities causing incidental take are required to go through interagency consultation pursuant to ESA Section 7.) The court also found that NMFS provided sufficient explanation of its decision not to promulgate regulations prohibiting collection and trade of the corals under ESA Section 9. The court remanded to NMFS for further proceedings. Center for Biological Diversity v. National Marine Fisheries Service, No. 1:23-cv-00306 (D. Haw. Mar. 6, 2025)
North Dakota Jury Found Greenpeace Liable for $667 Million in Connection with Dakota Access Pipeline Protests
After a 12-day trial, a North Dakota jury found that Greenpeace Inc., Greenpeace International, and Greenpeace Fund, Inc. (together, Greenpeace) were liable for almost $667 million in compensatory and exemplary damages to Energy Transfer LP and Energy Transfer Operating, L.P (Energy Transfer) and Dakota Access, L.L.C. (Dakota Access) for actions related to the Dakota Access Pipeline (DAPL) protests. Energy Transfer planned, designed, and constructed DAPL, which is owned and operated by Dakota Access. North Dakota Monitor published the jury verdict form. The jury found that Greenpeace Inc. was liable to both Energy Transfer and Dakota Access for trespass, aiding and abetting trespass, trespass to chattel, aiding and abetting trespass to chattel, conversion, aiding and abetting conversion, nuisance, and aiding and abetting nuisance. Both Greenpeace Inc. and Greenpeace International were found liable for conspiracy, and all three defendants were found liable for defamation, defamation per se, and tortious interference with business. Greenpeace said it would appeal the verdict to the North Dakota Supreme Court and noted that it is pursuing an action against Energy Transfer in the Netherlands under the European Union’s anti-SLAPP (Strategic Litigation Against Public Participation) directive. Energy Transfer LP v. Greenpeace International, No. 30-2019-0V-00180 (N.D. Dist. Ct. Mar. 19, 2025)
Utah High Court Affirmed Dismissal of Youth Plaintiffs’ Constitutional Climate Case on Subject Matter Jurisdiction Grounds
The Utah Supreme Court affirmed a trial court’s dismissal of youth plaintiffs’ lawsuit seeking a declaration that certain Utah statutory provisions and government conduct violated their rights to life and liberty under the Utah Constitution because the provisions and conduct were “designed to maximize fossil fuel development in Utah,” which the plaintiffs said “endangers their health and shortens their lifespans by exacerbating the effects of climate change.” The Supreme Court concluded, however, that because the dismissal was on subject matter jurisdiction grounds, the dismissal should be without prejudice. With respect to the plaintiffs’ challenge to a provision that provided that the State would promote “nonrenewable energy resources,” the Supreme Court held that the challenge was moot because the provision had been amended in 2024. With respect to the other statutory provisions challenged by the plaintiffs, the Supreme Court held that the plaintiffs did not have standing because the provisions did not limit the Utah defendants’ discretion in decision-making regarding fossil fuel development and declaring the provisions unconstitutional therefore would not be substantially likely to redress the plaintiffs’ alleged climate change harms. In response to the plaintiffs’ request that the court provide “guidance as to the constitutional parameters” governing the defendants “subsequent conduct” even if redressability was found to be lacking, the Supreme Court said it could not provide such guidance because it would be an impermissible advisory opinion. The court also found that plaintiffs’ claims regarding government conduct were not justiciable because the plaintiffs did not tie the claims to specific government actions such as granted permits or other regulatory decisions. Natalie R. v. State of Utah, No. 20230022 (Utah Mar. 20, 2025)
Appellate Court Affirmed Dismissal of Challenge to New York City Pension Funds’ Fossil Fuel Divestment
The New York Appellate Division affirmed the dismissal of a lawsuit alleging that three New York City public employee retirement systems breached fiduciary duties by divesting from companies involved in fossil fuel extraction. The appellate court found that the plaintiffs, who were recipients of a defined benefit retirement plan, failed to establish standing because they did not demonstrate an injury in fact since their benefits “are fixed and will not change, regardless of how well or poorly the plan is managed.” The court also said the legislature and courts could not encroach on the discretion vested in the “politically accountable trustees,” and characterized the plaintiffs’ arguments as speculative, “particularly based on the documentary evidence and the absence of any support for the allegation that the plans might be unable to cover their obligations to retirees.” Wong v. New York City Employees’ Retirement System, No. 2024-05062 (N.Y. App. Div. Mar. 11, 2025)
Washington Trial Court Said Natural Gas Access Ballot Initiative Violated State Constitutional Requirements
In a decision from the bench, a Washington Superior Court held that Initiative Measure No. 2066 (I-2066) violated the Washington Constitution’s single-subject rule and other requirements for ballot initiatives. The ballot title for I-2066 stated that it “would repeal or prohibit certain laws and regulations that discourage natural gas use and/or promote electrification, and require certain utilities and local governments to provide natural gas to eligible customers.” Voters approved the initiative in November 2024. The lead plaintiff’s press release announcing the court’s decision cited the judge as stating that I-2066 was “so broad, it requires a thorough examination of statutes [to determine its impacts]… In summary I-2066 violates the single subject requirement, the subject and title requirement, and the section-amended-shall-be-set-forth-at-full-length requirement. For these reasons, I-2066 is unconstitutional.” The Chronicle reported that there would be a direct appeal to the Washington Supreme Court. Climate Solutions v. State, No. 24-2-28630-6 (Wash. Super. Ct. Mar. 21, 2025)
Alaska Trial Court Dismissed Young Plaintiffs’ Lawsuit Seeking to Block LNG Project
An Alaska Superior Court dismissed a lawsuit brought by young plaintiffs who sought to block the Alaska Liquefied Natural Gas (LNG) Project on the grounds that it would exacerbate climate change and thereby violate their rights under the Alaska Constitution. The plaintiffs also sought a declaratory judgment that they had a “fundamental right to a climate system that sustains human life, liberty, and dignity” under Article VIII and Article I, Section 7 of the Alaska Constitution. The court concluded that Alaska Supreme Court precedent in Kanuk ex rel. Kanuk v. State (2014) and Sagoonick v. State (2022) addressed “substantially similar facts and legal theories” and dictated the dismissal of the claims in this case as barred by the political question doctrine and on prudential grounds. The Superior Court said the plaintiffs “impermissibly ask this Court to substitute its own policy judgment for that of the legislature, which … has determined that promotion of the Alaska LNG Project is in the best interest of Alaskans.” The Superior Court cited “prudential grounds” for denying the declaratory relief and further noted that the political question doctrine would bar judicial enforcement of any declaratory judgment. The court wrote that although the plaintiffs might be “frustrated” by elected officials’ policy choices, “they may not utilize the courts to undercut a valid exercise of the legislature’s Article VIII powers.” Sagoonick v. State of Alaska, No. 3AN-24-06508CI (Alaska Super. Ct. Mar. 10, 2025)
Massachusetts Court Dismissed Greenwashing Action Against Energy Provider
A Massachusetts trial court granted Eversource Energy’s motion to dismiss a greenwashing class action alleging that the energy provider deceptively marketed, promoted, and sold natural gas and natural gas services to residential consumers as “clean,” “safe,” and “good for the environment.” The court found that the plaintiffs failed to allege that they suffered an injury that would entitle them to relief under Massachusetts’s false advertising or consumer protection laws. The court said the plaintiffs’ allegations that they overpaid for natural gas did not adequately allege that the company’s allegedly false statements artificially inflated the price because rates charged by the company were not entirely within its control since the company operated subject to a tariff approved by state regulators. The court also found that the plaintiffs waived an unjust enrichment claim and that, in any event, it would have concluded that the plaintiffs failed to state such a claim. Ortiz v. Eversource Energy, No. 24-1455-BLS1 (Mass. Super. Ct. Feb. 19, 2025)
Maine Court Dismissed Organizations’ Lawsuit to Compel State’s Adoption of Climate Regulations
On December 6, 2024, a Maine trial court ruled that Conservation Law Foundation, Sierra Club, and Maine Youth Action lacked standing to bring their lawsuit asserting that the Maine Department of Environmental Protection and the Maine Board of Environmental Protection acted arbitrarily and capriciously, as well as unlawfully under Maine’s 2019 climate law, by failing to adopt transportation decarbonization rules. The court first concluded that the organizations did not have standing to sue in their own right because the alleged harm to their missions and advocacy efforts was not a particularized injury. The court further concluded that the plaintiffs did not allege sufficiently particularized injury to their members’ property rights, pecuniary interests, health, or personal rights. The court also rejected the argument that the organizations’ members had taxpayer standing to seek preventive relief against the State defendants for violating a statewide public duty. Conservation Law Foundation v. Maine Department of Environmental Protection, No. AP-24-22 (Me. Super. Ct. Dec. 6, 2024)
Court of Federal Claims Dismissed Pro Se Plaintiff’s Challenge to Commercialization Condition for Greenhouse Gas Reduction Fund Grants
The U.S. Court of Federal Claims concluded that it did not have jurisdiction over a pro se plaintiff’s claims that the U.S. Environmental Protection Agency had imposed an illegal “five-year commercialization rule” for grants under the Inflation Reduction Act’s Greenhouse Gas Reduction Fund. The plaintiff alleged that he had been shut out of funding for an electric vehicle charger he had invented. The court found that the case presented “the quintessential claim under the Administrative Procedure Act” that should be brought in a federal district court and that it was not a cognizable claim under the Tucker Act. The court also said the claim for damages was outside the court’s jurisdiction. The court determined that it would not be appropriate for the court to initiate transfer to a district court but dismissed the complaint without prejudice to allow the plaintiff the opportunity to refile. Macallister v. United States, No. 25-351C (Fed. Cl. Feb. 28, 2025)
Virginia Court Suspended Judgment Against State’s Repeal of RGGI Regulation
Southern Environmental Law Center announced that a Virginia Circuit Court had granted a request by the Virginia State Air Pollution Control Board and other respondents to suspend execution of the court’s November 2024 judgment that the respondents lacked authority to repeal the regulation that implemented Virginia’s participation in the Regional Greenhouse Gas Initiative (RGGI). The judgment will remain suspended while the State proceeds with an appeal. Association of Energy Conservation Professionals v. Virginia State Air Pollution Control Board, No. CL23000173-00 (Va. Cir. Ct. Mar. 6, 2025)
NEW CASES, MOTIONS, AND OTHER FILINGS
Lawsuit Filed to Challenge EPA’s Extension of Reporting Deadline for Greenhouse Gas Reporting
Environmental Defense Fund (EDF) filed a petition for review in the D.C. Circuit Court of Appeals challenging the U.S. Environmental Protection Agency’s (EPA’s) extension of the reporting deadline for 2024 data under the Greenhouse Gas Reporting Rule. In its press release announcing the lawsuit, EDF noted that EPA Administrator Lee Zeldin had identified the Greenhouse Gas Reporting Program as one of 31 agency actions that EPA would reconsider. EDF also said the two-month extension of the reporting deadline followed an unexplained shutdown of the reporting portal for over a month. EDF described the reporting program as “a fundamental part of U.S. climate policy” that gathers data “used by a wide variety of state and local governments, businesses, communities, and organizations.” Environmental Defense Fund v. Zeldin, No. 25-1101 (D.C. Cir., filed Mar. 21, 2025)
More Lawsuits Filed to Challenge EPA Waiver for California’s Advanced Clean Cars II Regulations
On March 7, 2025, American Petroleum Institute (API) filed a petition for review in the Ninth Circuit Court of Appeals challenging the Clean Air Act preemption waiver granted by the Biden administration U.S. Environmental Protection Agency in January 2025 for California’s Advanced Clean Cars II regulations. API contended that the Ninth Circuit had jurisdiction over the case because the challenged action was “locally or regionally applicable,” which made review in the Ninth Circuit appropriate under the Clean Air Act’s jurisdiction provision. But API also filed a petition for review in the D.C. Circuit as a “protective measure.” At least one additional challenge to the waiver was pending in the Ninth Circuit, and the D.C. Circuit proceeding was consolidated with a lawsuit filed a week earlier by producers and sellers of liquid vehicle fuels and with a suit filed on the same day by American Fuel & Petrochemical Manufacturers (AFPM) and two other trade groups. The producers contended that venue was proper in the D.C. Circuit because “[t]he Advanced Clean Cars II regulations covered by the waiver do not target local pollution-causing conditions; they target greenhouse gases in an effort to tackle global climate change. And because of the challenged waiver decision, those globally focused regulations may apply nationwide since other States can adopt—as eleven States have already done—and enforce California’s regulations.” AFPM also asserted that the D.C. Circuit was the proper venue. On March 12, 2025, Center for Biological Diversity and other organizations sought to intervene in the D.C. Circuit cases in support of the waiver. On March 14, EPA filed an unopposed motion to hold the case in abeyance. American Petroleum Institute v. EPA, No. 25-1478 (9th Cir., filed Mar. 7, 2025); American Petroleum Institute v. EPA, No. 25-1082 (D.C. Cir., filed Mar. 7, 2025); Valero Renewable Fuels Co. v. EPA, No. 25-1078 (D.C. Cir., filed Feb. 28, 2025); American Fuel & Petrochemical Manufacturer v. EPA, No. 25-01085 (D.C. Cir., filed Mar. 7, 2025)
Environmental Defense Fund Filed FOIA Lawsuit Seeking Agency Records on EPA Endangerment Finding
Environmental Defense Fund (EDF) filed a Freedom of Information Act (FOIA) lawsuit in the federal district court for the District of Columbia to compel the U.S. Department of the Interior, the Council on Environmental Quality, and the National Oceanic and Atmospheric Administration to produce correspondence and records related to the U.S. Environmental Protection Agency’s (EPA’s) 2009 Endangerment Finding regarding greenhouse gases. After President Trump signed an executive order on Inauguration Day directing the EPA administrator to collaborate with other agency heads to submit recommendations on the legality and continuing applicability of the Endangerment Finding, EDF submitted FOIA requests to the agencies on February 3, 2025 seeking correspondence and records of Trump administration transition team members and political appointees related to the Endangerment Finding. In its lawsuit, EDF asserted that the agencies had failed to comply with FOIA’s statutory deadlines. Environmental Defense Fund v. U.S. Department of the Interior, No. 1:25-cv-00871 (D.D.C., filed Mar. 24, 2025)
Community Groups and Cities Challenged Grant Funding Freezes in South Carolina Federal Court
Eleven community groups and six cities filed a lawsuit in the federal district court for the District of South Carolina alleging that the Trump administration had unlawfully and arbitrarily frozen federal grant funds that the plaintiffs had been awarded to carry out programs under the Inflation Reduction Act (IRA) and the Infrastructure Investment and Jobs Act (IIJA). The complaint alleged that grants affected by the Trump administration’s actions involved projects and programs intended to reduce greenhouse gas emissions, including development of energy-efficient affordable homes in the City of North Charleston, South Carolina; development of a private-sector mechanism for sustainable practices for cultivation of agricultural commodities; and a composting facility in Baltimore. The plaintiffs asserted that executive orders and other actions freezing the funds violated the separation of powers, the Constitution’s Presentment Clauses, the Administrative Procedure Act, the First Amendment, the IRA, and the IIJA. Sustainability Institute v. Trump, No. 2:25-cv-02152 (D.S.C., filed Mar. 19, 2025)
Recipients of USDA Inflation Reduction Act Grants Challenged Funding Freeze
Farmers and nonprofit recipients of U.S. Department of Agriculture (USDA) grants under the Inflation Reduction Act filed a lawsuit in the federal district court for the District of Columbia challenging Trump administration actions imposing an “unlawful and indefinite freeze of Congressionally appropriated funds.” The plaintiffs alleged that they were participants in USDA grant programs to which the Inflation Reduction Act appropriated funds, including the Rural Energy for America Program, which provides loans and grants for renewable energy and energy efficiency systems on farms; the Forest Service’s Urban and Community Forestry Grants; the National Resources Conservation Service’s Conservation Technical Assistance Program; and programs to provide assistance and support for underserved farmers. The plaintiffs asserted that the defendants’ actions violated separation of powers and the Take Care Clause and were contrary to law and arbitrary and capricious in violation of the Administrative Procedure Act. Butterbee Farm v. U.S. Department of Agriculture, No. 1:25-cv-00737 (D.D.C., filed Mar. 13, 2025)
Endangered Species Act Lawsuit Sought Protections for Climate Change-Threatened Plants and Reptiles in Florida
Center for Biological Diversity filed a lawsuit asking the federal district court for the Southern District of Florida to compel the U.S. Fish and Wildlife Service (FWS) to issue final determinations on the proposed listing under the Endangered Species Act of three small reptiles that are “found only in the southern tip of Florida and the Florida Keys” and “are facing existential threats from the combined effects of urban development and sea level rise driven by climate change.” The three species are the Florida Keys mole skink, the Rim Rock crowned snake, and the Key ring-necked snake. The lawsuit also challenged FWS’s failure to designate critical habitat for eight south Florida plants. The complaint alleged that the pine rocklands ecosystems where these plants live are “globally critically imperiled and threatened by fire suppression, climate change, and sprawl development.” Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:25-cv-21190 (S.D. Fla., filed Mar. 13, 2025)
Consumer Class Action Asserted Climate Washing Claims Against Sugar Producer
A greenwashing consumer class action filed in the federal district court for the Northern District of California alleged that Florida Crystals and its parent company deceived and misled consumers into purchasing their sugar products. The complaint alleged that the defendants advertised their products as beneficial for the environment and as helping to fight climate change when in fact the companies’ sugarcane harvesting involves pre-harvest burns that result in “substantial volumes of unnecessary greenhouse gases,” as well as other air pollutants. The complaint alleged that “[r]esearchers have found that switching from burning to green harvesting—i.e., slashing—reduces greenhouse gas emissions during the harvest period by approximately 24 percent.” The complaint also alleged that beyond the harvest period burned sugarcane fields release approximately 37% more soil-bound carbon dioxide than green-harvested fields. The complaint also alleged that the burn-harvesting methods cause localized impacts including soil damage. The plaintiffs asserted violations of California’s False Advertising Law, Consumers Legal Remedies Act, and Unfair Competition Law, as well as breach of warranty and unjust enrichment/restitution claims. The relief sought included declaratory and injunctive relief; damages, restitution, and/or disgorgement; punitive damages, statutory penalties, and/or monetary fines; and attorney fees and costs. Merrell v. Florida Crystals Corp., No. 5:25-cv-02264 (N.D. Cal. Mar. 5, 2025)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
FEATURED CASE
European Court of Human Rights: Council of Europe found that Switzerland has not yet complied with the requirements of the ECtHR judgment by not having done enough to align its policy with a maximum global warming limit of 1.5°C
After exhausting all domestic remedies, the applicant association Senior Women for Climate Protection Switzerland brought a complaint to the European Court of Human Rights (ECtHR) on 26 November 2020, alleging that Switzerland’s inadequate climate policies violated their rights under Articles 2 (right to life), 6 (right to a fair trial), 8 (respect for private and family life), and 13 (right to an effective remedy) of the ECHR. The ECtHR granted priority status, heard third-party interventions, and held hearings in March 2023.
On 9 April 2024, the ECtHR Grand Chamber found Switzerland in violation of Article 8 and Article 6 § 1. The Court held that Article 8 encompasses a right to effective protection against the adverse impacts of climate change and found that Switzerland had failed to implement adequate regulatory frameworks and meet its past GHG reduction targets. It also ruled that the applicant association’s access to court was unjustly denied.
On 6 March 2025, the Committee of Ministers of the Council of Europe determined that Switzerland had not yet complied with the ECtHR judgment. The Committee called on Swiss authorities to provide further evidence that their legislative and administrative framework aligns with Convention standards, specifically through a quantified national carbon budget or equivalent emissions limitation consistent with a 1.5°C warming threshold. KlimaSeniorinnen v Switzerland (ECtHR)
DECISIONS AND SETTLEMENTS
France: Public prosecutor dismissed complaint against TotalEnergies based on contribution to climate change
On May 21, 2024, the NGOs BLOOM, Alliance Santé Planétaire, Nuestro Futuro, and eight individuals filed a criminal complaint in Paris Criminal Court against the board of directors and main shareholders of TotalEnergies. According to the plaintiffs’ press release, the complaint alleges that the board of directors and main shareholders should be held criminally liable for their decisions that contributed to climate change, which they took despite knowing they would cause significant casualties and environmental damage. The alleged offences include deliberately endangering the lives of others, involuntary manslaughter, neglecting to address a disaster, and damaging biodiversity. According to the press release, the public prosecutor has discretion to decide whether to dismiss the case or open a judicial investigation.
On February 7, 2025, the French public prosecutor dismissed the complaint due to a lack of sufficiently established offenses. Regarding the offense of endangerment, the prosecutor emphasized that criminal liability requires proof of a deliberate violation of a specific legal or regulatory safety obligation. BLOOM cited various legal texts, including Article 2 of the Paris Agreement (which aims to limit global temperature rise below 2°C), Article 4 of EU Regulation 2021/1119 (which establishes the framework for achieving climate neutrality), and Article L100-4 of the French Energy Code (which mandates a 40% reduction in greenhouse gas emissions by 2030 and carbon neutrality by 2050). However, the prosecutor determined that these provisions represent objectives rather than legally enforceable obligations under criminal law. Additionally, the Prosecutor stated that while greenhouse gas emissions are a recognized driver of climate change, such activities are not inherently unlawful. Establishing an environmental offense would require demonstrating a direct causal link between a wrongful act and specific environmental harm, a standard that, according to the prosecutor, was not met in this case.
Similarly, the prosecutor noted that the offense of willful failure to combat a disaster requires clear knowledge of an ongoing disaster, its precise identification, and an intentional decision not to intervene. The evidence presented did not establish that TotalEnergies deliberately failed to address the natural disasters referenced in the complaint, such as floods, wildfires, storms, and cyclones.
Lastly, regarding involuntary manslaughter, the prosecutor stated that the complexity and multiplicity of factors contributing to severe climate events make it impossible to prove a direct causal link between TotalEnergies’ activities and any specific fatality resulting from a climate disaster. BLOOM and Others v. TotalEnergies (France, Criminal Court of Paris)
India: Supreme Court sets hearing date and key observations on mitigation case
Ridhima Pandey, a nine-year-old from the Uttarakhand region, is the named plaintiff in a climate change case filed in March 2017 with the National Green Tribunal of India. Plaintiff’s petition argues that the Public Trust Doctrine, India’s commitments under the Paris Agreement, and India’s existing environmental laws and climate-related policies oblige greater action to mitigate climate change. It also argues that the term “environment,” as used in the Environment (Protection) Act 1986, necessarily encompasses the climate.
The case was brought pursuant to section 2(m) of the National Green Tribunal Act 2010, which authorizes claims that raise “a substantial question relating to the environment.” In addition to those legal provisions, the petition cites the principles of sustainable development, precaution, and intergenerational equity, as well as judicial decisions based on similar legal principles in the Netherlands (Urgenda Foundation v. Kingdom of the Netherlands), Pakistan, (Leghari v. Pakistan), and the U.S. (Juliana v. United States). Pandey argued that she, along with all children and future generations, had the right to a healthy environment under the principle of intergenerational equity. Pandey also argued that climate change affects children disproportionately. Children were more vulnerable to impacts like heat waves, displacement, diseases, and malnutrition. As climate was an inherent part of the environment, she asserted that safeguarding the environment and protecting forests was critical to addressing climate change.
The petition notes that India is the third-largest national emitter of greenhouse gases (behind China and the U.S.) and among those countries that are most susceptible to adverse climate change impacts. It identifies 1° degree Celsius or 350ppm of atmospheric carbon dioxide as the critical pair of thresholds for India (and the world) to avoid exceeding for the sake of avoiding severe climatic changes—facts described in the petition as rooted in “[t]he best climate science.” To remedy the alleged injury to the present and future climate, the petition asks the court to order the national government to undertake a variety of measures, including but not limited to inclusion of climate change in the issues considered by environmental impact assessments, preparation of a national greenhouse gas emissions inventory, and preparation of a national carbon budget against which particular projects’ emissions impacts can be assessed.
On January 15, 2019, the National Green Tribunal dismissed the case, reasoning that the climate change is already covered in the process of impact assessments under the Environment Protection Act of 1986, and therefore, “There is no reason to presume that Paris Agreement and other international protocols are not reflected in the policies of the Government of India or are not taken into consideration in granting environment clearances.”
The petitioner has appealed the decision of the NGT before the Supreme Court of India. The Supreme Court has appointed two amici curiae and directed the Union government to file a compilation of all relevant Rules and Regulations concerning Carbon Emissions. On February 21, 2025, the Supreme Court issued notice in the matter and made the following key observations:
1. While considering that India has ratified and incorporated the UNFCCC and Paris Agreement nationally through various initiatives, court recognises that the enforceability and binding force of these initiatives must be examined.
2. Court also noted that a meticulous examination of the existing environmental statutes is necessitated “with a view to incorporating climate-centric mandates.”
3. Court also recognised synchronisation of the institutional framework under various ministries, who are currently “[appear] to be working in silos.” As such, it directed 8 Indian ministries to be impleaded as parties.
The next hearing date is March 28, 2025. Ridhima Pandey v. Union of India (India, National Green Tribunal)
Permanent Court of Arbitration: Tribunal found that levy on solar energy was not a tax under Czech law
The arbitration case involved Antaris GmbH, a German commercial company, and Dr. Michael Gode (“Claimants”) against the Czech Republic (“Respondent”). The Claimants filed a claim against the Czech Republic concerning alleged violations of the Energy Charter Treaty (ECT) and the bilateral investment treaty between Germany and the Czech and Slovak Federal Republic, signed on October 2, 1990. Specifically, they argued that legislative changes made by the Respondent—specifically, measures introduced by the Czech government to address the financial burden caused by the solar energy boom—negatively impacted their investments in photovoltaic power plants. These changes included the implementation of the Solar Levy, which was a tax imposed on solar installations receiving excessive feed-in tariffs (FiTs), and the removal of the 5% cap on the reduction of FiTs for solar plants connected to the grid from 2011 onward. The Respondent argued these changes were necessary due to - among other things - concerns over state aid rules under EU law.
Consequently, the Claimants requested that the Tribunal issued a declaration stating that the Respondent’s actions constitute unfair treatment in violation of the ECT and the German BIT; they also sought compensation for losses incurred due to these breaches. The Respondent, in turn, requests the dismissal of all claims on the grounds including of lack of jurisdiction over taxation measures under the ECT.
The Tribunal found that Solar Levy did not qualify as a taxation measure under Czech law or within the meaning of Article 21(7) ECT. Despite being administered like a tax and titled ‘levy’, substantial considerations suggest otherwise. The Tribunal found no requirement for an express stabilisation provision to establish a legitimate expectation. However, it concluded that investors should have been aware that dealing with the solar boom was a fast-moving political issue and legislative changes were possible. Finally, three-quarters of arbitration costs should be borne by Claimants while Respondent should be awarded legal costs. All claims made by Claimants were dismissed, and they were ordered to pay within 28 days a sum of US$1.75 million and GBP 178,125.50 to the Respondent. Antaris Solar GmbH and Dr. Michael Göde v. The Czech Republic (Arbitral Tribunal, Permanent Court of Arbitration)
Arbitral Tribunal: Spain’s regulatory changes do not violate the ECT’s fair and equitable treatment standard.
The case “Charanne B.V. and Construction Investments S.A.R.L. v. Spain” (SCC Case No. 062/2012) involves a dispute under the Energy Charter Treaty (ECT) between the claimants, Charanne B.V. and Construction Investments S.A.R.L., and the respondent, the Kingdom of Spain. The claimants invested in the Spanish renewable energy sector, specifically in photovoltaic plants, based on Spain’s regulatory framework that included a Feed-In Tariff (FIT) regime established by RD 661/07 and RD 1578/08. This regime was intended to incentivize investments by guaranteeing certain tariffs for a minimum of 25 years.
The dispute arose when Spain implemented regulatory changes in 2010, which included RD 1565/2010 and RDL 14/2010, altering the FIT regime. The claimants argued that these changes violated their legitimate expectations and the fair and equitable treatment standard under Article 10(1) of the ECT, as they had relied on the stability of the original regulatory framework when making their investments.
The tribunal, seated in Madrid and operating under the SCC Arbitration Rules (2010), found in favor of Spain. It concluded that there was no indirect expropriation of the claimants’ investments and that the changes did not violate the ECT’s fair and equitable treatment standard. The tribunal determined that Spain retained its regulatory power to amend the regime, and the claimants’ expectations were not deemed legitimate in the context of the regulatory changes. Charanne B.V. and Construction Investments S.A.R.L. v. Spain (Arbitral Tribunal, SCC Arbitration Institute)
Australia: Fair Work Commissioner properly considered and dismissed the issue of climate change as not being a matter for the Commission to consider
Wollongong Coal sought to terminate its NRE No 1 Colliery Workplace Agreement under section 225 of the Fair Work Act 2009, arguing that the 2011 Agreement was outdated, financially burdensome, and restrictive for plans to reopen the Russell Vale mine, which had ceased operation and entered care and maintenance in 2015. The company planned to restart operations using a more labour-intensive bord and pillar mining method but claimed it was unable to achieve necessary operational flexibility under the existing agreement. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) opposed the termination, asserting it would negatively impact former employees who expected re-employment under the agreement and could set a precedent lowering regional industry standards.
On April 7, 2020, Commissioner Riordan dismissed Wollongong Coal’s termination application, concluding that the termination was not clearly in the public interest, given uncertain employment benefits and potential negative impacts on regional wages. Riordan also highlighted past compliance concerns with Wollongong Coal’s financial and employment obligations. The company appealed, arguing errors in the decision-making process, notably that speculative negative outcomes were improperly weighted, and that the Commission failed to properly assess the importance of termination for reopening the mine.
On 24 September 2020, a Full Bench of the Fair Work Commission upheld Wollongong Coal’s appeal. The Bench found the original decision contained significant errors in applying the legislative criteria under section 226, including improperly emphasizing speculative regional wage outcomes while inadequately evaluating the operational and financial necessity for terminating the agreement. Climate change issues, though briefly mentioned during the original proceedings, were explicitly considered not to be relevant to the Commission’s decision-making process, as policy on climate change and coal mining is a matter for government. The Full Bench quashed the initial decision and ordered a rehearing to properly determine if terminating the enterprise agreement was appropriate under all relevant circumstances. Wollongong Coal Limited v Construction, Forestry, Maritime, Mining and Energy Union (Australia, Fair Work Commission Full Bench)
India: Court rules that judicial reviews of legislative actions or subordinate legislation prioritize environmental protection and sustainable development
The case centers on the validity of an exemption notification issued on September 24, 2015, which exempted 62 to 63 species of trees and plants from the regulatory provisions of the Transit Rules, 2000. The notification was challenged on the grounds that it was beyond the authority granted by the Forest Act of 1927 and violated Articles 14, 21, and 48-A of the Constitution of India.
The State of Madhya Pradesh issued a notification that exempted several species of forest produce from regulatory control. This notification was later amended to include additional species. As a result, concerns arose about large-scale deforestation and the illegal trading of timber, which were intensified by these exemptions. The court reviewed internal correspondence and inquiry reports that highlighted the negative impact of these exemptions on climate change and the biodiversity of Madhya Pradesh.
The main issue was the validity and constitutionality of the exemption notification and its subsequent amendments. The court also examined the environmental impact of these exemptions, especially regarding climate change. It evaluated whether the exemptions were justified by compelling reasons, backed by data, research, and surveys. Furthermore, the court considered the necessity of periodic reviews and assessments of the exemptions to ensure they do not contribute to environmental degradation.
In doing so, the court quashed the exemption notification dated 24.09.2015 and its subsequent amendments, declaring them ultra vires the provisions of Secs. 41(1), (2) & (3) of the Forest Act, 1927, and violative of Articles 14, 21, and 48-A of the Constitution of India. The court found that the notification was issued without any independent background research, surveys, or empirical studies to demonstrate the compelling circumstances for exempting such a large number of species. The annulment of the impugned notification revived the applicability of the Transit Pass Rules, 2000 to all the previously exempted species. The court emphasized that the regulatory measure under Sec. 41(2) of the Forest Act is a norm, and the power to exempt under Sec. 41(3) is an exception that must be exercised sparingly and with compelling reasons.
The judgment addresses the existential threat posed by climate change and underscores the critical role that forests play in mitigating its harmful effects. It points out the connection between fundamental rights and environmental issues, asserting that the right to a healthy environment is inherent in the right to life as stated in Article 21. The court mandates that judicial reviews of legislative actions or subordinate legislation must prioritize environmental protection and sustainable development, in line with both national and international commitments to combat climate change. The ruling highlights the importance of implementing regulatory measures to safeguard forests and natural resources, ensuring that any exemptions do not contribute to further environmental degradation. Vivek Kumar Sharma vs The State Of Madhya Pradesh (India, High Court of Madhya Pradesh)
Australia: Court found protests not to be directed at addressing climate change
The defendants, due to their concern about climate change, participated in a protest. The defendant considered and maintained it was important for individuals and the government to reduce the use of climate change. They hoped to disrupt the activities of the Australian Petroleum Production and Exploration Association (APPEA), which they understood as the gas and petroleum industry lobby group.
“The protest involved blockading the two main entrances to the Premises. The Defendants are each charged with being a person, in a territory, who engaged in unreasonable obstruction while taking part in an assembly, in contravention of subsection 9(1) of the Public Order (Protection of Persons and Property Act 1971 (Cth) (the Act).” - excerpt from ruling.
Defendants were not dealing with climate change through their obstruction. Their actions would not solve or improve the issue of climate change. The goal was to get the public’s attention to the urgency of the issue and the government’s policies with respect to climate change. Since no reasonable person would believe that the defendants’ actions were actually directed at addressing an emergency (here, climate change), the court ruled that the defendant failed to meet their burden of proof. Police v Abel; Police v Adams; Police v Kelly; Police v Molan; Police v Wurcker (Australia, Magistrates Court of the Australian Capital Territory)
Australia: Tribunal denies asylum to Fijian citizen since climate change doesn’t pose a real risk under the Migration Act
This case concerns a review application before the Administrative Appeals Tribunal regarding a decision by a delegate of the Minister for Home Affairs, made on 23 July 2018, to refuse the applicant’s request for a protection visa under the Migration Act 1958 (Cth). The applicant, a citizen of Fiji, applied for a protection visa on 15 April 2018, asserting fears based on political opinion due to an altercation with Fijian government officials in 2015 concerning bauxite mining operations affecting communal farmland, environmental degradation, and associated climate change impacts.
During the Tribunal hearing on 19 September 2022, the applicant expressed concerns about the potential economic hardship and threats to subsistence due to the environmental impacts from mining and climate-related effects on agriculture and fisheries near his village. He also raised broader concerns about political corruption, police brutality, and general insecurity in Fiji, particularly if he returned as a failed asylum seeker.
However, on 21 September 2022, the Tribunal, presided over by Member Genevieve Hamilton, affirmed the original decision not to grant a protection visa. The Tribunal found that the applicant did not have a well-founded fear of persecution on political grounds, noting that after the 2015 incident with government officials, he had not experienced further persecution or targeting. The Tribunal concluded the environmental and climate-change-related hardships, although genuinely challenging, did not amount to persecution or pose a real risk of significant harm as defined under the Migration Act. Consequently, the Tribunal found no basis for Australia’s protection obligations under either refugee or complementary protection criteria and affirmed the original refusal decision. Refugee Application No. 1822451 (Australia, Administrative Appeals Tribunal)
Australia: Tribunal found that the environmental concerns do not amount to any real risk to provide for refugee status
This case involves an application for a protection visa by two Fijian nationals who arrived in Australia in September 2014. They applied for protection visas on July 5, 2016, which were refused by a delegate of the Minister for Home Affairs. The applicants sought review of this decision at the Administrative Appeals Tribunal (AAT) on June 25, 2019. The Tribunal affirmed the delegate’s decision on August 27, 2024.
The applicants claimed protection based on their fear of harm from violent youths involved in drug and alcohol abuse in their area, asserting continuous harassment, property damage, and threats to their safety. Specifically, they cited past incidents, including their water supply being poisoned and their residence stoned. Despite these claims, the Tribunal raised concerns about the credibility of their evidence, noting inconsistencies and embellishments. Moreover, the Tribunal highlighted the significant delay in applying for protection and multiple return trips to Fiji, undermining the applicants’ stated fears.
The climate change aspect of the case relates to the broader environmental problems affecting farming viability on Taveuni Island, Fiji. Reports submitted indicated that intensive farming practices combined with climate-related events, such as Tropical Cyclone Winston in 2016 and ongoing environmental degradation, have reduced agricultural productivity significantly, affecting economic stability. However, the Tribunal concluded that these climate-related concerns, although challenging, did not amount to persecution or significant harm as required by law.
Ultimately, the Tribunal determined that the applicants did not meet the refugee or complementary protection criteria, finding no well-founded fear of persecution for protected reasons nor a real risk of significant harm specific to them. Thus, the decision not to grant protection visas was affirmed. Refugee Application No. 1916631(Australia, Administrative Appeals Tribunal)
Australia: Tribunal finds no evidence of risk to climate protester seeking asylum
In 1929335 (Refugee) [2022] AATA 2623, the Administrative Appeals Tribunal (AAT) considered three Temporary Protection visa applications lodged by a Vietnamese father (Applicant A) and his daughter (Applicant B). Their applications, initially submitted in 2013 and 2015, were delayed due to assumptions that they were unauthorised maritime arrivals, rendering them ineligible. However, following the Federal Court’s decision in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178, the Tribunal accepted the applications for review. A joint hearing was held in March 2022, and the decision was handed down on 29 June 2022.
Applicant A claimed he feared persecution in Vietnam due to his Catholic religion, association with an activist priest, involvement in a violent church confrontation in 2012, his anti-communist political opinions, illegal departure, and his status as a failed asylum seeker. The Tribunal, however, found significant inconsistencies in his evidence, including contradictions regarding the 2012 incident and the authenticity of supporting documents. It concluded that his claims were not credible and likely fabricated to support his application. His conviction on drug-related charges in Australia further undermined his case but was not determinative in the Tribunal’s rejection of his protection claims.
Applicant B, who arrived in Australia as a child, raised similar concerns, including fears based on her religion, gender, political views (actual and imputed), and association with her father. She also cited limited involvement in activism in Australia, including attending climate change protests and signing online petitions. The Tribunal found her claims speculative and unsupported by evidence. It concluded that her low-level political activity, age at departure, and current family ties in Vietnam meant she did not face a real chance of serious harm.
While Applicant B mentioned involvement in environmental and social justice issues, including climate change, the Tribunal found no credible link between these activities and any risk of harm in Vietnam. The case did not raise substantive climate change protection issues. Ultimately, the Tribunal was not satisfied that either applicant met the refugee criteria under s 36(2)(a) or the complementary protection criteria under s 36(2)(aa) of the Migration Act 1958 (Cth), and affirmed the decision to refuse both applications. Refugee Application No. 1916631 (Australia, Administrative Appeals Tribunal)
Australia: Tribunal found that the applicant did not provide sufficient detail that they feared any problems arising from climate change to qualify them as refugees
In 2317975 (Refugee) [2024] AATA 1558, the Administrative Appeals Tribunal reviewed a decision made by a delegate of the Minister for Home Affairs to refuse a protection visa to a Tongan national. The applicant had lodged his application on 18 September 2023. The Department’s refusal was dated 31 October 2023, and the Tribunal affirmed the decision on 14 March 2024, following a decision to proceed without a hearing after the applicant elected not to attend.
The applicant claimed he feared persecution in Tonga due to his political opinions, lack of employment opportunities, and the socio-economic situation in the country. He referred to an article characterising Tongans as victims of an “economic war,” highlighting poverty, land control by the nobility, and criticism of Tongan government policy. He also stated that he was not closely involved in the preparation of his protection visa application, which had been assisted by community members rather than a registered migration agent or lawyer. Despite an initial intention to submit further evidence, none was provided before the Tribunal made its decision.
The Tribunal accepted the applicant’s nationality and receiving country as Tonga but found that he had not provided sufficient detail or supporting evidence to establish a well-founded fear of persecution or a real risk of significant harm. The claims lacked specificity and failed to link any potential harm to a protected ground under the Migration Act 1958 (Cth). The applicant did not demonstrate that he had suffered past harm or that any future harm would be inflicted for reasons such as political opinion, nor was there any evidence that he would be personally targeted due to socio-economic hardship.
As to the climate change aspect, the Tribunal noted that while Tonga is vulnerable to climate-related events, the applicant did not make claims linking environmental harm to a Convention ground or show any intention by authorities to harm him for environmental reasons. The Tribunal found no evidence of climate-related persecution or risk of significant harm and concluded that the applicant did not meet the refugee criteria under s 36(2)(a) nor the complementary protection criteria under s 36(2)(aa) of the Migration Act 1958 (Cth). The decision to refuse the protection visa was therefore affirmed. Refugee Application No. 2317975(Australia, Administrative Appeals Tribunal)
Brazil: Court ratified agreement recognizing that Brazil’s commitment to the Paris Agreement has been resumed
This is a Popular Action, with a request for an injunction, filed by young activists who are members of the Engajamundo and Fridays for Future Brasil movements, against Ricardo de Aquino Salles (in his capacity as Minister of the Environment), Ernesto Henrique Fraga Araújo (former Minister of State for Foreign Affairs) and the Federal Union.
Youths claimed that the 2020 submission of its Nationally Determined Contribution (NDC) was less ambitious than the previous one, presented in 2015, in breach of the Paris Agreement (enacted by Federal Decree 9.073/2017). The 2020 Brazilian NDC would allow the country to reach the year 2030 emitting between 200 million and 400 million tons of carbon dioxide equivalent (CO2e) more than proposed in 2015. Youths claimed that the reduction of Brazil’s climate ambition through the use of accounting artifice constitutes “climate pedaling” and requested an injunction until the effects of the new NDC were determined and it was updated in accordance with the progressiveness required by the Paris Agreement. Youth asked that: (i) the 2020 NDC be declared null; (ii) the defendants present an NDC with the percentages of reduction of CO2e emissions increased beyond the necessary limit, aiming at the fulfillment of the commitment of progressiveness of the Paris Agreement; and (iii) condemning the defendants to pay damages for their actions.
A monocratic decision was handed down from the Federal Civil Court of São Paulo that recognized the competence of the Court, since the Paris Agreement was signed and promulgated internally, but rejected the injunction, as it was not possible, summarily, to state that the new NDC did not reflect the greatest possible ambition. After the decision, the defendants filed a contestation, alleging preliminarily the absence of domestic jurisdiction to analyze the matter on the grounds that: (i) acts of sovereignty practiced at the international level are not subject to internal control by the ordinary civil jurisdiction and bind States in terms of foreign relations; (ii) no connecting elements between the subjection of the matter to national jurisdiction were presented; (iii) the Paris Agreement provided for its own dispute settlement mechanism; and (iv) there was no harmful act, as Brazil continues to play a leading role in mitigating the effects of climate change with the greatest possible ambition, in addition to the update being in line with the international best practices.
On November 30, 2023, the Federal Government signed an agreement with the group of young environmentalists who filed the lawsuit to settle the case and bring it to an end. The agreement, in addition to recognizing that Brazil’s commitment to the Paris Agreement has been resumed, provides for the country’s next climate target to be set transparently and with broad participation from civil society. The agreement was ratified by the court in June 2024. In September 2024, the case was definitively closed. Six Youths v. Minister of Environment and Others (Brazil, Sao Paulo Federal Court)
Brazil: Supreme Court finds that unilaterally paralyzing functions of the Amazon Fund without a substitute body was an unconstitutional omission
On June 5th, 2020, four political parties filed a Direct Action of Unconstitutionality for Omission (ADI-O), before the Federal Supreme Court (STF), challenging the Federal government’s alleged failure to adopt administrative measures concerning the Amazon Fund.
The Amazon Fund, created by Decree 6,527/08, has the objective of promoting projects that prevent or combat deforestation and finances actions for the Reduction of Emissions from Deforestation and Forest Degradation (REDD +) mechanism, under the UNFCCC. The plaintiffs claim that the fund has not approved any project since 2019, although resources are available and projects are awaiting technical analysis. They further allege that between 2019 and 2020, important mechanisms that allowed the functioning and management of the Amazon Fund were extinguished, namely: the Technical Committee of the Amazon Fund (CTFA), responsible for calculating deforestation and the amount of carbon emitted, and the Steering Committee of the Amazon Fund (COFA), the Fund’s governance body.
The plaintiffs rely on the common duty of the Federal Government, the States, the Federal District and the Municipalities to “protect the environment and fight pollution in any of its forms” and “to preserve forests, fauna and flora” per the Federal Constitution of 1988, as well as the precautionary principle. They also allege a violation of Article 225 of the Federal Constitution, regarding the State’s duties to: preserve and restore ecological processes; promote the ecological management of ecosystems; define territorial spaces and its components to be specially protected; and protect fauna and flora. The petition also seeks an injunction to require that Federal Union take the necessary administrative measures to reactivate the operation of the Amazon Fund.
In June 2020 the Supreme Court admitted the lawsuit and requested the federal and state government actors involved to provide information related to: (i) the management and distribution of Fund resources; (ii) activities and projects linked to the Fund that have been implemented and suspended; (iii) data on the deforestation process observed in the Amazon region between 2013 and 2020; and (iv) contracts signed with international donors (Germany and Norway).
The Public Attorney’s Office (Advocacia-Geral da União, AGU), in the defense of the Federal Government, presented a response stating that the ADI-O would not be a suitable instrument “for demonstrating discontent or disagreement with the content of government actions”.
On June 26, 2020, the National Development Bank (BNDES), which manages the Amazon Fund, sent information about the resources and projects linked to it. Several NGOs were admitted as amicus curiae by Minister Rosa Weber. On October 23, 2020, Minister Rosa Weber held a public hearing to specify the arguments that underlie ADO 59, in addition to discussing the factual, statistical and normative contexts that permeate the protection and preservation of the Legal Amazon, through the Fund Amazon.
On March 18, 2022, the minister and president of the STF, Luiz Fux, admitted seven environmental cases on the agenda for March 30, 2022 (including two climate cases, this case and ADPF760). This move by the STF is considered historical, and was called the “green agenda.” On November 3, 2022, the STF determined that the federal government shall, within 60 days, adopt all of the administrative tasks necessary to reactivate the Amazon Fund. The court decided that the decrees that altered the functioning of the Fund and interrupted the funding of new projects were unconstitutional. The court further found that the unilateral extinction of the committee without creating a substituting body was an omission in the government’s duty to protect the Amazon rainforest.
On August 16, 2023, the Brazilian Supreme Court published the ruling of the case, partially granting the claim. As stated, the court, by a majority, following the vote of Reporting Justice Rosa Weber, ordered the Federal Government to take measures to reactivate the Amazon Fund, within sixty days, and to refrain from engaging in omissive conduct that would paralyze the Fund’s operation. The decrees that altered the Fund’s governance and prevented the financing of new projects were declared unconstitutional, and the previous model is to be resumed. The paralysis of the Amazon Fund was considered an unconstitutional omission by the federal government and an offense to the principle of non-regression. The ruling emphasized that environmental preservation, especially in the Amazon, is an obligation imposed by the Federal Constitution and various international regulations to which the government is legally bound, reducing the space for administrative discretion. It was stated that there is an unconstitutional state of affairs in the Legal Amazon and a destructive and unstructured regulatory state in environmental matters in the region. PSB et al. v. Brazil (on Amazon Fund) (Brazil, Federal District Federal Court)
Brazil: Injunction request dismissed in case seeking suspension of environmental permit of a natural gas plant
On May 31, 2023, the NGO Instituto Verdeluz, the Indigenous Council of the Anacé People of Japiman, and the Indigenous Association of the Anacé People of the Planalto Cauipe Village filed a Public Civil Action (environmental class-action) against the company Portocem Geração de Energia S.A. and the Secretary of the Environment of the State of Ceará (Secretaria do Meio Ambiente do Estado do Ceará – SEMACE). The plaintiffs seek the suspension and subsequent annulment of the environmental licensing process of the Portocem Thermoelectric Plant (UTE), powered by natural gas, which is to be installed in the Pecém Industrial and Port Complex (CIPP). They claim there is non-compliance with legal norms and several omissions in the Environmental Impact Study (EIA), including (i) the concealment of indigenous communities in the vicinity of the project, (ii) the disregard of impacts related to water resources, (iii) the disregard of potential socioeconomic impacts, (iv) the underestimation of damage to health, and (v) the disregard of climate impacts. They also believe that there was no adequate analysis of synergistic and cumulative impacts with other enterprises in the region, considering their insertion in an Industrial Complex. In relation to climate impacts, the plaintiffs argue that the EIA failed to list important consequences for climate stability. They mention the reports of the Intergovernmental Panel on Climate Change (IPCC) and how the use of fossil fuels is incompatible with the guiding principles of the national energy policy. They argue that Brazil and the state of Ceará have made a legal commitment to reduce greenhouse gas (GHG) emissions, which goes against the implementation of a new gas-fired thermoelectric plant. The plaintiffs also point out that the Northeast is one of the regions in Brazil most vulnerable to climate change and stress the importance of the risk analysis of the project to the water security of the region, considering that the water resources of the Northeast are under pressure from climate change. On top of the problems in the impact assessment, the plaintiffs also state flaws in the licensing process due to the lack of effective public participation. In this sense, they question the lack of prior, free, and informed consultation with the indigenous Anacé people. They believe that there was a violation of national and international norms of indigenous peoples’ rights, especially Convention 169 of the International Labor Organization (ILO).
In light of these various irregularities, the plaintiffs request, in an injunction, the suspension of the installation license granted by SEMACE as well as the determination that Portocem Energia S.A. refrain from starting the implementation work. On these merits, they request that the licensing process be declared null and void and that a new environmental licensing process be conducted with the presentation of a new EIA that corrects the flaws pointed out and includes prior, free, informed and good faith consultation with the affected indigenous peoples.
A preliminary decision was handed down dismissing the injunction for lack of urgency and probability of the right. However, a decision on the merits is still pending.
In July 2023, the defendants filed their defenses. They argued that environmental licensing was regularly held. A final decision on the merits is still pending. Instituto Verdeluz and others v. Portocem Geração de Energia S.A. and SEMACE (Brazil, Ceará Federal Court)
Brazil: Parties reach an agreement related to energy policy in the state of Rio Grande do Sul
On November 12, 2019, the Rio Grande do Sul Public Prosecutor’s Office (MPRS) filed a Public Civil Action (environmental class-action) against the State of Rio Grande do Sul and the State Environmental Agency (Fundação Estadual de Proteção Ambiental Henrique Luís Roessler – FEPAM). It seeks to prevent the implementation of the Carbon Chemical Complex in the State as well as the State Policy on Mineral Coal. The MPRS questions the lack of popular participation, especially through public hearings, in the legislative process of State Law 15.047/2017, which authorized the construction of the Carbon Chemical Pole and created the State Policy for Mineral Coal. In addition, it argues that there should be a prior Environmental Impact Assessment (EIS) for the implementation of the Pole, considering the climate impacts of the activities on the site, which will be placed in the complexes of Baixo Jacuí and Campanha, and a Strategic Environmental Assessment before its institution, which must consider the synergistic and global effects of all the activities. The author adds that the policy encourages the use of a highly impactful energy matrix regarding the emission of greenhouse gases (GHG). The MPRS emphasizes the proximity of the carbon-chemical complexes to protected areas and cities. The author alleges that the implementation of the Pole considers only the EIS specific to the Guaíba Mine, not taking into account the entire complex. It argues that the State Law does not consider, among other issues, environmental protection, at odds with the federal and state legislation on climate change. The granting of an injunction is required to prevent, among other measures, (i) the implementation of the State Policy on Mineral Coal and the establishment of the Pole and (ii) the issuance of an environmental license for an enterprise inserted in complexes, up to the realization of public hearings and the development of an EIS and a Strategic Environmental Assessment, prior to the implementation of the Carbon Chemical Pole and the State Policy on Mineral. On a definitive basis, the author requires the confirmation of preliminary injunctions to declare the illegality of the legislative process that led to the State Law.
Subsequently, the legal action 9019860-68.2020.8.21.0001, filed by Arayara Association of Education and Culture and by the Colony of Fishermen Z-5, was reunited to this lawsuit due to the connection between the demands. On June 12, 2022, the process migrated to another electronic system of the Court, being reported as 5091523-82.2019.8.21.0001.
On March 21st, 2023, the MPRS, FEPAM, and the state of Rio Grande do Sul filed a joint petition requesting that an agreement be ratified to end the lawsuit. They considered that the factual, technical, political and legal circumstances that led to the filing of this public civil action had changed significantly during the case, with changes in the state’s energy scenario. They claimed that there is no concrete indication that the state is going to adopt a State Mineral Coal Policy or set up a Carbochemical Hub. In the agreement, the state took on the duty to draw up a new term of reference before initiatives to implement a policy that adopts these fossil sources or an enterprise, and to contract a comprehensive Strategic Environmental Assessment to support decision-making processes. The agreement was ratified and the case was dismissed. Public Ministry of the State of Rio Grande do Sul vs. State of Rio Grande do Sul and FEPAM (Carbochemical Complex) (Brazil, Rio Grande do Sul State Court)
Brazil: Court found no harm to the public patrimony, administrative morality, or the environment from the government’s implementation of the IncentivAuto Program
On November 10, 2021, individuals from two global movements that seek to promote climate justice, Families for the Climate and Fridays for Future, filled a Popular Action, with a request for a preliminary injunction, against the State of São Paulo, the Governor of the State (João Doria) and the Secretary of Finance and Planning (Henrique Meirelles). The plaintiffs question the adequacy of the administrative acts that structure the institutional design of the IncentivAuto Program - Automotive Regime for New Investments to the federal and state rules protecting the climate system, such as the National Policy on Climate Change - PNMC (Federal Law 12. 187/2009) and the State Policy on Climate Change - PEMC (State Law 13.798/2009), and the international commitments made by Brazil, especially under the United Nations Framework Convention on Climate Change - UNFCCC and the Paris Agreement. The plaintiffs highlight the lack of transparency of the Program’s information, which resulted in the separate filing of the Autonomous Action for the Advance Production of Evidence (No. 1047315-47.2020.8.26.0053). They argue that public policies for social and economic development should be aligned with the mitigation of environmental or climate damage and the preservation of the environment, life, and human health of present and future generations, highlighting the social function of property. They allege that the acts do not bring any requirement for project assessment through socio-environmental parameters that aim at the reduction of Greenhouse Gas (GHG) emissions. According to the plaintiffs, the Program finances, with public resources, the increase of emissions, in disagreement with the protective norms of the climate system. Finally, they request, among other things, (i) the granting of injunctive relief determining the suspension of the IncentivAuto Program and, definitively, (ii) the confirmation of the injunction to declare the nullity of the regulations that structure it and of the other administrative acts resulting therefrom; or, alternatively, to determine that the State of São Paulo includes, in the Program, conditions for the approval of projects related to the adoption of measures aimed at the reduction of GHG emissions and adaptation to climate impacts.
On January 12, 2021, a decision was handed down denying the request for preliminary injunction, on the grounds that there is no evidence of the probability of the right, and that it was necessary to produce evidence to determine whether the environmental damage was greater than the economic development goal established. The judge pointed out that the IncentivAuto Program is required to comply with environmental requirements.
In response, the State of São Paulo argued, in sum, that the implementation of the IncentivAuto Program stimulates socioeconomic development, thus meeting the public interest for which it was created, and that there is no harm to public property, administrative morality or the environment. The State affirmed that the protection of the environment is not separated from other constitutionally guaranteed rights, being necessary the conciliation with the development values through the principle of sustainable development. The State noted that it has a clean energy matrix and a policy based on several sources of supply, on energy security and efficiency, having already implemented different public policies aimed at the reduction of emissions and pollutants, highlighting the PEMC. In his reply, the Governor of São Paulo, João Doria, argued his illegitimacy as a respondent and that the plaintiffs cannot question the convenience and opportunity of the legislation, that the intention to suspend the Program violates the principles of discretion and separation of powers.
On May 22, 2022, the court handed down a sentence in which it dismissed the action. It pointed out that the Program requires compliance with various obligations, including obtaining environmental licenses and complying with the pollutant emission standards of the Vehicle Emission Control Program (PROCONVE), established by CONAMA Resolution 18/1986 and ratified by Federal Law 8.723/1993. The court concluded that there was no harm to the public patrimony, administrative morality, or the environment. Regarding the subsidiary request, it understood that it configures an obligation to do, not being possible to use the Popular Action for this purpose.
The plaintiffs filed an appeal, which was denied, and the ruling was upheld. Clara Leonel Ramos and others vs. State of São Paulo and others (Families for the Climate and Fridays for Future question IncentivAuto Program) (Brazil, Sao Paulo State Court)
Brazil: Court confirms Brazil’s environmental protection agency has standing to file a public civil action for environmental and climate damages
On December 20, 2018, Brazil’s Federal Environment Agency (“IBAMA”), filed a public civil action (environmental class-action) against Madelin Madeireira Linhares Ltda. seeking compensation for environmental and climate damages based on an infringement notice for illegal wood storage without an environmental license.
This public civil action is part of a set of 9 lawsuits brought by IBAMA on the same grounds, but against different defendants, to question illegal wood deposits and climate damage.
The plaintiff alleges that the storage of wood without proven origin is associated with illegal deforestation and predatory exploitation in the Amazon biome. Thus, it seeks reparation for environmental damages provoked by it, including (i) the damage caused to flora and fauna, (ii) soil erosion, (iii) contribution to global warming. As for the climate damage, it claims that the unlawful conduct not only removed carbon sinks from the forest, but also caused the release of carbon into the atmosphere.
The plaintiff seeks redress through the determination of (i) an obligation to restore the vegetation in an area equivalent to that estimated by IBAMA, based on the volume of logs seized, amounting to 43,2727 hectares, ideally in an area of the same biome in Indigenous Land, Conservation Unit or Agrarian Reform Settlement Project and (ii) an obligation to pay the climate damage based on the Carbon Social Cost (CSC) in the amount of R$ 2,871,489.47. It claims, based on the polluter pays principle, that the climate damage represents an external social cost that is not internalized by the illegal deforestation, leaving it to society. It also argues that climate damage can be quantified on an individual scale by multiplying the estimated GHG emissions of the activity by the CSC. In this case, IBAMA uses the Amazon Fund methodology to estimate emissions based on the area of the Amazon biome considered deforested, summing up to 15,881.0809 tons of carbon.
The plaintiff requests, as an injunction: (i) suspension of financing and tax incentives and access to credit lines by the offender, (ii) unavailability of assets in the estimated amount for the obligation of the vegetation restorage and the obligation to compensate the climate damage, and (iii) judicial restraint order of the illicit polluting activity. On the merits, it requests the defendant’s conviction in the obligation to do - to recover an area equivalent to that deforested - and the obligation to pay - in the amount related to the social cost of carbon.
The defendant filed an opposition claiming the incompetence of the court, the active illegitimacy of IBAMA and the occurrence of lis pendens. On the merits, it argued the existence of an ongoing administrative proceeding, the failure to prove the causal link, the disagreement regarding IBAMA’s calculation methods for identifying the volume of seized wood and collective environmental damage (CSC).
The Court dismissed the action on the grounds of IBAMA’s active illegitimacy. According to the decision, under the principle of predominance of interests in the distribution of environmental jurisdiction, there was no interest of the Union involved to give rise to IBAMA’s action.
Subsequently, IBAMA filed an appeal defending its active legitimacy in view of the express legal provision. In its counter-appeal, the appellant company insisted on the arguments for dismissal of the appeal.
In November 2024, a ruling annulled the judgment and determined that IBAMA and the Federal Public Prosecutor’s Office have standing to file a public civil action for environmental damage. As a result, the case was sent back to the original court for regular processing. Federal Environment Agency (IBAMA) v. Madelin Madeireira Linhares Ltda. (Brazil, Roraima Federal Court)
Brazil: Court highlights significance of the Atlantic Forest as a carbon sink
On May 11, 2020, the Federal Public Prosecutor’s Office (MPF) and the Public Prosecutor’s Office of the State of Paraná (MPPR), filed a public civil action (environmental class-action) against the Federal Environment Agency (IBAMA) and the Environment Agency of the State of Paraná (IAT). The plaintiffs argue that Order 4.410/2020, issued by the Minister of the Environment, changed the previous understanding on the prevalence of the Atlantic Forest Law (Federal Law 11.428/2006) over the Forest Code (Federal Law 12.651/2012). The previous understanding considered the Atlantic Forest Law specialty in regulating this biome. The plaintiffs argue that the new understanding to apply the Forest Code, which is a less protective general rule, would allow the consolidation of occupation of protected areas (APP) illegally deforested (until July 22, 2008). They emphasize the need for the provisions of the Atlantic Forest Law to prevail due to the specialty and greater protection afforded to the biome. They highlight the importance of the biome and the contribution of its deforestation to greenhouse gas (GHG) emissions, arguing that the National Policy on Climate Change (PNMC – Federal Law 12.187/2009) provides for preservation of biomes considered to be National Heritage, such as the Atlantic Forest. As a preliminary injunction, the plaintiffs request a series of administrative measures to prevent the cancellation of environmental infraction notices issued by the state of Paraná in the event of unauthorized suppression, cutting and/or use of remaining Atlantic Forest vegetation, and that the state environmental agency (IAT) refrain from approving documents that consolidate occupation in protected areas (APP) on properties in the Atlantic Forest with suppressed vegetation. In the final instance, they request that the injunctions be confirmed and that the IAT refrain from granting environmental licenses in favor of activities in APPs in the Atlantic Forest in disagreement with the special legislation.
In their defense, IBAMA and IAT argued that there is no antinomy between the Atlantic Forest Law and the Forest Code, claiming that the Forest Code created an exceptional regime to govern deforested areas consolidated over time in a less rigorous manner, which is applicable to any biome. Both requested that the initial claims be dismissed.
The lower court granted the preliminary injunction requested by the plaintiffs. It considered the special nature of the Atlantic Forest Law, which seeks stricter legal protection for the biome. Based on the principles of prevention and precaution, the judge held that the application of the Forest Code’s provisions in the Atlantic Forest biome could result in serious damage to the environment.
The ruling upheld the case and partially granted the claims, ordering: (i) the IAT and IBAMA to refrain from canceling environmental infraction notices, embargo and interdiction terms and seizure terms in the state of Paraná and referring to the Atlantic Forest biome; (ii) the IAT not to approve Rural Environmental Registrations (CARs) that are intended to consolidate improper occupation of Permanent Preservation Areas (PPAs) and legal reserves on properties in the Atlantic Forest biome; and (iii) the IAT to stop granting environmental licenses for projects in PPAs located in the Atlantic Forest biome, without due observance of specific protective legislation. It was determined that the measures should be complied with immediately, without being conditional on the offering of a bond and subject to a fine for each act of non-compliance, due to the postulate of prevention, precaution and the principle of in dubio pro natura. The decision highlighted important points such as: (i) the significant size of the Atlantic Forest biome and that forests play the role of climate regulators, contributing to the stabilization and reduction of average temperatures; (ii) the impacts of global warming generated by the irrational use of natural resources combined with deforestation; (iii) the use of market mechanisms, such as the carbon credit market, to protect the Atlantic Forest; and (iv) the economic benefits obtained from the ecological services provided by nature, i.e. maintaining ecological integrity by conserving biodiversity, conserving water and water services, regulating the climate, conserving and improving the soil, among others. Federal Public Prosecutor’s Office and Public Prosecutor’s Office of the State of Paraná vs. Federal Environment Agency (IBAMA) and Environment Agency of the State of Paraná (IAT) (Brazil, Paraná Federal Court)
Brazil: Court extinguished case without resolution due to cancellation of auction of oil exploration blocks
On November 17, 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 argued 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 argued 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 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.
In May 2024, the ruling extinguished the case without resolution of the merits due to the supervening loss of the object of the action. This ruling was based on the fact that, on December 13, 2023, the public bidding session of the 4th OPC was held and, on that occasion, no bid was made for the blocks which are the subject of this lawsuit. Instituto Arayara vs. ANP and others on auction of oil exploration blocks in Montes Submarinos (Brazil, Pernambuco Federal Court)
Brazil: Court orders defendant to pay for climate damages caused by deforestation
On September 15, 2021, the Federal Public Prosecutor’s Office (MPF) filed a Civil Public Action (CPA) against Nilma Félix for deforesting an area of 135.80 hectares in 2018, in Boca do Acre, Amazonas. The MPF alleges that the defendant’s occupation of the land was unlawful because it was part of an Agro-Extractivist Settlement Project (PAE), owned and managed by the National Institute for Colonization and Agrarian Reform (INCRA) and occupied by traditional extractivist communities. This ACP is part of a set of 22 actions brought by the MPF as a result of the investigation carried out in Civil Inquiry No. 1.13.000.001719/2015-49 into illegal deforestation carried out inside the Antimary Agro-Extractivist Settlement Project (PAE) but against different defendants. The lawsuit is based, among other things, on Brazilian environmental law concerning the constitutional protection of the environment, the accusation of deforestation, propter rem civil liability for environmental damage, including climate damage, and collective moral damages. It also mentions the unauthorized emissions of Greenhouse Gases (GHG) caused by the illegal deforestation of the area, calculated at 77,583.75 tons of carbon dioxide and which are directly related to the Brazilian State’s departure from its climate goals, out of step with national and international commitments assumed by Brazil in the National Policy on Climate Change - PNMC (Federal Law 12.187/2009) and in the Paris Agreement (promulgated by Federal Decree 9.073/2017). Among other requests: (i) reparation for the damage caused by illegal deforestation; (ii) payment of compensation corresponding to intermediate and residual material environmental damage; (iv) payment of compensation corresponding to climate damage; and (v) payment of compensation corresponding to collective moral damage.
The defendant was declared in default.
On September 20, 2024, the court ordered the defendant to (i) recompose the degraded area; (ii) pay compensation for material damages relating to interim and residual environmental damage, in an amount to be determined in the liquidation phase of the judgment; (iii) pay compensation for climate damage caused by deforestation, in the amount of R$2,133,553.12 and (iv) to pay compensation for collective moral damages of R$2,000.00 per hectare deforested. The ruling recognized the existence of climate damage, unlawful conduct, and a causal link, even though the defendant was not responsible for the deforestation but benefited from the damage caused by a third party. To calculate the value of the climate damage, US$ 5.00 per ton of CO2e was adopted, per Ordinance 176/2023.
The sentence became final and the Federal Public Prosecutor’s Office requested that it be enforced. Federal Public Prosecutor’s Office v. Nilma Félix (Deforestation and climate damage in the PAE Antimary) (Brazil, Amazonas Federal Court)
New Zealand: Court finds claim that the government failed to reduce carbon emissions to be untenable
In March 2022, the plaintiff, a Māori elder, landowner, and tribal climate spokesperson, brought a claim against New Zealand’s government, alleging “inadequate action in relation to climate change”. He argued that the successive New Zealand governments had failed to adequately address the effects of climate change on New Zealand and its citizens, especially Māori. Specifically, the plaintiff argued that the government had failed to incorporate international obligations into domestic law, and to reduce the carbon emissions produced by government activities. Furthermore, although the government had introduced an emissions trading scheme, the plaintiff argued that the overall emissions cap was set too high and contained unjustifiable exemptions.
The claim was based on three legal grounds: (1) rights protected under New Zealand’s statutory Bill of Rights Act (NZBORA), specifically the rights to life and culture; (2) obligations allegedly owed under the Treaty of Waitangi | Te Tiriti o Waitangi (including possible fiduciary duties); and (3) rights protected under New Zealand’s common law (including the public trust doctrine). First, the plaintiff alleged that the New Zealand government had breached the rights guaranteed under sections 8 and 20 of the New Zealand Bill of Rights Act 1990 (NZBORA), namely the rights to life and the rights of minorities. Second, the plaintiff alleged that the New Zealand government had failed to act in accordance with its obligations under te Tiriti o Waitangi | the Treaty of Waitangi (Te Tiriti), New Zealand’s founding document. The defendant applied for the claims to be struck out. Third, the plaintiff argued that the government owed (and had breached) a common law duty of care to New Zealanders to “take all necessary steps to reduce NZ emissions and to actively protect the plaintiff and his descendants from the adverse effects of climate change.”
In July 2022, the New Zealand’s High Court struck out all three claims as untenable. First, it found that the common law duty of care lacked reference to any recognized legal obligations, and went beyond mere incremental development of new obligations. Furthermore, it was beyond the democratic role and institutional competence of a Court to “monitor” the full scope of the government’s climate change response. Next, the Court found that the right to life claim was untenable because the plaintiff had not pointed to a “real and identifiable” risk to a specified individual. Furthermore, the minority rights claim had failed to particularize specific breaches, NZBORA s 20 does not impose positive duties on the State, and that the Crown had taken adequate steps to consider the interests of Māori. Finally, the Court found that Te Tiriti does not give rise to free-standing obligations, and that plaintiff’s claim was too wide-ranging to give rise to fiduciary Te Tiriti obligations because such obligations would untenably be owed to the public in general. Even if such duties were to be developed, they would need to rely on the common law duty advanced in the first cause of action, which the Court deemed untenable in any event.
In 2024, New Zealand’s Court of Appeal upheld the High Court’s decision. The Court of Appeal accepted that it might be plausible that “an inadequate response” to climate change could be challenged under NZBORA. However, the Court found that Smith’s particular claim was untenable. This was because it challenged a comprehensive piece of legislation, New Zealand’s Climate Change Response Act (CCRA), rather than specific decisions made under it. The framework itself “reflect[s] policy choices that are for Parliament,” not the courts. Secondly, the Court of Appeal found the plaintiff’s Treaty of Waitangi claims to be “clearly untenable.” It concluded that the present case was ill-suited to considering whether legislation could be declared inconsistent with the Treaty of Waitangi, partly because the challenged CCRA already integrated Treaty-related obligations. Likewise, the claimed fiduciary duty was too broad and general. Finally, the Court rejected the plaintiff’s common law claim. In addition to similar reasons for striking out the first two claims, the Court concluded that the public trust doctrine obligations alleged by the plaintiff were too broad and displaced by legislation.
Note: The same plaintiff also brought a claim against New Zealand’s seven largest greenhouse gas emitters, based in tort law. That case, Smith v Fonterra, has a separate database entry. Smith v. Attorney-General (New Zealand, High Court of New Zealand)
Brazil: Appeal filed in “carbon grabbing” or “carbon credit grabbing” case
On December 20, 2021, AMOREMA and AMORETGRAP filed a Public Civil Action (ACP) against Sustainable Carbon - Projetos Ambientais Ltda., Ecomapuá Conservação Ltda., Eccaplan Consultoria em Sustentabilidade, Bio Assets Ativos Ambientais Ltda, Deloitte Touche Tohmatsu Consultores Ltda., Barilla G. e R. F.lli S.P.A., Banco Santander S.A., ISA CTEEP - Companhia de Transmissão de Energia Elétrica Paulista, Deloitte Touche Tohmatsu Auditores Independentes, BB MAPFRE Participações S.A., IATA International Air Transport Association, Swire Pacific Offshore Operations (PTE.) Ltd, Inter-American Development Bank, Companhia de Locação das Américas, Groupe Air France, 17er Oberlandenergie GMBH, Wienerberger GMBH, Brockhaus Stahl GMBH and other companies which acquired carbon credits from the Ecomapuá Project that could not be identified by the plaintiffs.
The judge of the Environmental and Agrarian Court of the Judicial Section of Pará declared the case to be extinguished without resolution of the merits, due to the inappropriateness of the chosen course of action. He considered that the lawsuit dealt with private property rights and therefore the Public Civil Action could not have been used.
AMOREMA and AMORETGRAP filed an appeal against the decision, in which they defended the appropriateness of the Public Civil Action for the claim. The Federal Public Prosecutor’s Office also filed an appeal. It argued that the lawsuit seeks to protect the fundamental rights of traditional peoples and communities to the exclusive use of their territories, dealing with practices of “carbon grabbing” or “carbon credit grabbing”, which are matters of public interest and related to environmental protection. He pointed out that the sentence was handed down without the prior hearing of the MPF, in violation of the Public Civil Action Law. It asked for the sentence to be annulled so that the case could be analyzed properly by the lower court.
It is alleged that the defendant companies illicitly traded in the voluntary market carbon credits generated in or around the Mapuá Extractive Reserve (RESEX Mapuá) and Terra Grande-Pracuúba Extractive Reserve (RESEX Terra Grande-Pracuúba), located in the Amazon, in the state of Pará, which characterizes illegal takeover of these assets. The defendant companies would obtain an economic advantage from the misappropriation of credits, due to the environmental preservation promoted by the traditional extractivist population, without receiving fair remuneration or compensation. The Extractive Reserves are, according to specific legislation, public lands of the Federal Union, whose real right of use is granted to the traditional populations that inhabit them. It is in discussion the generation and sale of carbon credits from “Ecomapuá Project” from 2015 in the Amazon, prepared and/or marketed by the companies Ecomapuá, Sustainable Carbon, Bio Assets and Evento Neutro, which consists of the sale of assets from REDD+ projects (credits generated by avoided deforestation, sustainable management and increased forest carbon stocks), is discussed. The other defendant companies are sued for having acquired the assets without the necessary diligence, therefore entering into void contracts due to illicit objects, or for being supporters of the project. It is claimed that areas of the Project, consisting of Fazendas Brasileiro, Lago do Jacaré and São Domingos, overlap with the territory of RESEX Mapuá and Terra Grande-Pracuúba, where hundreds of families live and, therefore, the certified credits from these areas should belong to the extractivist communities that inhabit them.
It is argued that the preservation of forests in the project areas comes from the activities of the extractivist communities in the region and that the sale of the assets of the Ecomapuá Project had the certification of “social carbon,” stating that there would be counterparts for the communities, which did not occur. Thus, the plaintiffs claim that the companies misused the name, image, and cultural heritage of the communities and altered the truth of the facts by advertising the socio-environmental responsibility of the Project. The associations argue that the companies caused collective material and moral damages to the extractivist families and incurred in enrichment by intervention. They request: (i) that the defendants which sold carbon credits submit detailed reports on said assets; (ii) that the defendants submit contracts and other documents on the transactions carried out within the scope of the Ecomapuá Project; (iii) the joint and several condemnation of the defendants to pay the plaintiffs compensation for material damages, restitution of the benefits earned by the defendants and compensation for collective moral damage; and (iv) order, under penalty of a fine, that the defendants cease to buy or sell carbon credits from within or around the Mapuá and Terra Grande-Pracuúba Extractive Reserves and cease to use the name and image of the extractivist populations, their associations and the respective Extractive Reserves. AMOREMA e AMORETGRAP vs. Sustainable Carbon and others (Brazil, Pará Federal Court)
Brazil: Court partially grants injunction on climate damages case
In December 2018, Brazil’s Federal Environment Agency (IBAMA), filed a public civil action (environmental class-action) against Madeireira Madevi Ltda. seeking compensation for environmental and climate damages based on an infringement notice for illegal wood storage without an environmental license.
This public civil action is part of a set of 9 lawsuits brought by IBAMA on the same grounds, but against different defendants, to question illegal wood deposits and climate damage.
The plaintiff alleges that the storage of wood without proven origin is associated with illegal deforestation and predatory exploitation in the Amazon biome. Thus, it seeks reparation for environmental damages provoked by it, including (i) the damage caused to flora and fauna, (ii) soil erosion, (iii) contribution to global warming. As for the climate damage, it claims that the unlawful conduct not only removed carbon sinks from the forest, but also caused the release of carbon into the atmosphere.
The plaintiff seeks redress through the determination of (i) an obligation to restore the vegetation in an area equivalent to that estimated by IBAMA, based on the volume of logs seized, amounting to 29.57 hectares, ideally in an area of the same biome in Indigenous Land, Conservation Unit or Agrarian Reform Settlement Project and (ii) an obligation to pay the climate damage based on the Carbon Social Cost (CSC) in the amount of R$ 2,871,48947. It claims, based on the polluter pays principle, that the climate damage represents an external social cost that is not internalized by the illegal deforestation, leaving it to society. It also argues that climate damage can be quantified on an individual scale by multiplying the estimated GHG emissions of the activity by the CSC. In this case, IBAMA uses the Amazon Fund methodology to estimate emissions based on the area of the Amazon biome considered deforested, summing up to 10,852.19 tons of carbon.
The plaintiff requests, as an injunction: (i) suspension of financing and tax incentives and access to credit lines by the offender, (ii) unavailability of assets in the estimated amount for the obligation of the vegetation restorage and the obligation to compensate the climate damage, and (iii) judicial restraint order of the illicit polluting activity. On the merits, it requests the defendant’s conviction in the obligation to do - to recover an area equivalent to that deforested - and the obligation to pay - in the amount related to the social cost of carbon.
In a preliminary decision, the court partially granted the injunction, considering that the danger of delay was evident, especially in view of the fragility of the ecologically balanced environment. Thus, it granted and ordered (i) the suspension of the right to participate in financing lines offered by official credit establishments and (ii) the restriction of access to tax incentives and tax benefits offered by the Government in the three spheres of the Federation. However, the Federal Judge stated that, for the time being, the use of the Social Cost of Carbon (SCC) for the purposes of decreeing the unavailability of assets was not feasible due to the lack of technical subsidies, and that the amount requested was, at first glance, disproportionate.
IBAMA then filed an interlocutory appeal (AI 1004508-40.2019.4.01.0000) requesting the inclusion of the amount related to the CSC in the declaration of unavailability of assets, considering the soundness of the methodology used as a reference for its quantification. It argues that in order to fully recover the environmental damage caused, it is necessary to include the social cost of carbon, which appears as “residual damage” or “permanent damage”.
A first conciliation hearing was held in which the parties expressed interest in formalizing an agreement, although they did not have a proposal ready.
In response, the defendant alleged a violation of the principle of due process of law in the administrative proceeding to determine the environmental violation and the absence of a causal link for imputation of liability. In addition, it argued that the use of the social cost of carbon for the purpose of quantifying the damage implies unjust enrichment since the extraction of forest products is a conduct unrelated to its business activity.
A new hearing was held with the presentation of a settlement proposal by the defendant. IBAMA disagreed with the settlement offer because it only contemplated the obligation to indemnify the environmental damage, with no mention of the need to restore the degraded area, and requested the proposal to be complemented. Thus, the defendant submitted a new proposal that is under analysis by IBAMA.
The defendant did not appear at the hearing and the court ruled that the attempt at self-composition had failed. At the time, IBAMA claimed that there was no possibility of an agreement since there had already been an administrative procedure, and this hypothesis was rejected. Federal Environment Agency (IBAMA) v. Madeireira Madevi Ltda. (Brazil, Pará Federal Court)
NEW CASES
Brazil: Public civil action filed challenging the 4th Bid Cycle for oil exploration blocks in the Sergipe-Alagoas and Potiguar Basins.
On December 6, 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) and the Federal Government, with the subsequent inclusion of the company 3R RNCE S.A. as a defendant. This lawsuit is part of a set of 6 environmental class-action filed against the 4th Bid Cycle for oil exploration blocks. The aim is to challenge the auction of oil exploration blocks located in the Sergipe-Alagoas and Potiguar Basins. 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 extractive reserves. The plaintiff state 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 Sergipe-Alagoas and Potiguar Basins be suspended until the technical analysis that demonstrates the socio-environmental viability is carried out. On a definitive basis, they request that the contested blocks be excluded from the Bid Cycle.
In June 2024, ANP presented its defense. According to the Agency, the bidding procedure was carried out regularly and judicial discussion of the issue violates the principle of the separation of powers and enters into the discretionary judgment of the executive branch. As for climate protection, it said that the NetZero 2050 scenario still envisages oil and gas as primary energy sources, used with mitigated or neutralized emissions.
In June 2024, the Federal Government filed its defense. The government argued that the procedure was regularly structured, that there was no overlap with buffer zones, that the executive branch’s discretion could not be subject to judicial control and that there were no environmental obstacles, stressing that the environmental licensing procedure would define any impacts in depth. It requested that the case be dismissed on the grounds of lack of procedural interest or active illegitimacy and, in the alternative, that the claims be recognized as unfounded.
In July 2024, company 3R RNCE S.A. also filed a defense requesting that the lawsuit be dismissed. According to the company, the bidding cycle is regular and assessments of environmental impacts at this time are premature and that any impacts will be assessed in the environmental licensing required for any oil exploration and production activity. Furthermore, it argued that there is no impediment to the development of economic activities in buffer zones. With regard to climate, the defendant company argues that the oil and natural gas sector is crucial to Brazil’s energy matrix and economy, and plays a central role in the transition to a low-carbon economy. It states that it is a fundamental industry for tackling global climate challenges, including to achieve the commitments of the Paris Agreement. It stresses that the energy transition must be fair, gradual and synchronized with the development of alternative sources, highlighting the continued importance of fossil fuels until 2050. The company states that, contrary to what the plaintiff claims, the offer of oil and gas exploration blocks is aligned with the country’s energy security needs and climate goals, following the Federal Government’s plans and its energy policy. Thus, it considers that the action seeks to implement public climate policies through the courts, which would be inappropriate and harmful to national sovereignty and development. It preliminarily requested that the case be dismissed without a decision on the merits, considering the lack of procedural interest, the regularity of the 4th Cycle of Permanent Offer of Concessions, the inappropriateness of the chosen avenue for discussing public policy, and the invasion of the competence of environmental agencies. In the alternative, it requested that the initial claims be dismissed in their entirety. Instituto Arayara v. ANP, Federal Government and 3R RNCE S.A. (Brazil, Alagoas Federal Court)
Brazil: Public civil action filed for injunction against illegal deforestation in the Municipality of Boca do Acre/AM
On November 26, 2024, the Federal Public Prosecutor’s Office (MPF) filed a Public Civil Action (ACP), with a request for an injunction, against Sebastião da Costa Mariano, due to the illegal deforestation of an area of 903.22 hectares in the Municipality of Boca do Acre/AM, which occurred in 2021 and was verified through Operation Smoke. Between 2021 and September 2024, in the same place, the defendant allegedly caused fires in the vegetation with the aim of clearing and maintaining pastures for cattle breeding. The lawsuit argues explicitly about the relationship between deforestation and climate change and its extreme effects at local and regional levels. It points out that Brazil’s main source of greenhouse gas emissions is through deforestation, highlighting the situation in the Amazon and Brazil’s commitments to reduce deforestation in the biome. It points out that the illegal deforestation in the case in point led to the emission of 534,613.750272 tons of carbon dioxide, which imposes the duty to compensate for material intermediate and residual climate damage. It uses the Amazon Fund’s calculation basis to assign the value of US$ 5.00 for each ton of CO2 emitted, resulting in the quantification of compensation at R$ 15,236,491.88. It requests a preliminary injunction to, among other measures, remove the cattle herd from the area in question, suspend access to financing and suspend registration in the CAR. As final requests, it asks for (i) the defendant to be ordered to repair the environmental damage by recovering the area; to be ordered to pay compensation for the intermediate and residual material environmental damage, for the social cost of the illicit act, with restitution of the illegally obtained profits, in the amount of R$ 19,404. 778.48; the obligation to pay compensation for residual and intermediate environmental damage, in the amount of R$15,236,491.88; the obligation to pay compensation for collective moral damage in the amount of R$9,702,389.24 and (ii) the reversal of the amounts of the conviction to the federal inspection bodies (IBAMA and ICMBio). Federal Public Prosecutor’s Office v. Sebastião da Costa Mariano (Brazil, Amazonas Federal Court)
Brazil: Public civil action filed seeking the suspension of the carbon credits/REDD+ project for violating the FPIC of indigenous and traditional communities
On November 19th 2024, the Federal Public Prosecutor’s Office (MPF) filed a Public Civil Action (ACP) against the state of Amazonas and the National Foundation for Indigenous Peoples (FUNAI), seeking the suspension of the carbon credits/REDD+ project implemented by the Amazonas Environment Secretariat (SEMA/AM). The plaintiff alleges that the project was implemented without prior, free and informed consultation with indigenous and traditional communities, in violation of ILO Convention 169. Also, carbon credit projects, especially in the REDD+ modality, have structural flaws that compromise their effectiveness in reducing greenhouse gas (GHG) emissions, serving more as an instrument for the commodification of traditionally occupied territories than as a real climate mitigation mechanism. As a preliminary injunction, it is requested that urgent relief be granted for the immediate suspension of SEMA/AM’s administrative acts. On the merits, it calls for the project to be declared null and void and for the state of Amazonas to be ordered to compensate the affected communities for material and moral damage. Federal Public Prosecutor’s Office v. State of Amazonas and FUNAI (Brazil, Amazonas Federal Court)
Brazil: Defendants filed defenses against Public Civil Action for injunction of project generating illegal carbon credits sold on the voluntary market.
On July 19, 2023, the Public Defender’s Office of the State of Pará (DPE-PA) filed a Public Civil Action (ACP) with a request for injunctive relief against Associação dos Ribeirinhos e Moradores, Sindicato dos Produtores Rurais de Portel, Amigos dos Ribeirinhos Assessoria Ambiental Eireli, Brazil Agfor LLC and the Municipality of Portel over a project that generates illegal carbon credits sold on the voluntary market. This ACP is part of a set of four lawsuits filed by the DPE-PA on the same grounds, but questioning different carbon credit projects. The Ribeirinho REDD+ Project (Project 2620), which is the subject of the lawsuit, overlaps the areas of five State Agro-Extractivist Settlement Projects (PEAEX). These PEAEX are public lands, whose real right of use is granted to traditional communities located in the municipality of Portel, in the state of Pará, which did not participate in the contested project. Project 2620 was presented to an international certifying company in 2017, but has not yet been registered, to generate REDD+ assets (credits generated by avoided deforestation, sustainable management and an increase in forest carbon stocks) for a period of thirty years. The companies and association are being sued for being responsible, developers of the project or alleged owners of the rural properties where it is located. The DPE-PA alleges irregularities in the property registrations that make up the project, and that the project does not have authorisation from the state of Pará, which characterises the grabbing of public land. In addition, the mayor of Portel issued a Public Utility Decree authorising its operation, which the DPE-PA argues is unconstitutional. It is emphasised that no prior technical study was carried out for the project. The DPE-PA argues that the defendants acted in violation of the right to traditional territory, the right to prior, free and informed consultation of traditional communities, did not comply with federal legislation on climate change, payments for environmental services and public forest concessions and did not benefit the communities directly affected by the project. It argues that the defendants’ behaviour entails the duty to compensate for collective moral damage. As an injunction, the plaintiff requests (i) recognition of the possession of the lands by the traditional communities; (ii) suspension of Project 2620 and an order that the defendants refrain from entering the PEAEX. On the merits, the plaintiff requests (i) confirmation of the requests for an injunction; (ii) recognition of the right to the traditional territory; (iii) the annulment of Project 2620 and the legal transactions derived from it; (iv) an order to prohibit the defendants from entering the territories; (v) a declaration that the Public Utility Decree issued by the Municipality of Portel is null and void; (vi) an order to pay collective moral damages in the amount of R$ 5,000,000.00 to be paid into the Eastern Amazon Fund in favour of the communities of the extractivist territories of Portel.
The defendants filed their defenses.
In December 2023, Brazil Agfor and Michael Greene, a partner in the company, claimed that the lands of Project 2620 were not the object of land grabbing, indicating that, contrary to the DPE’s claims, the community’s areas unduly overlapped with private properties. The only mention of the climate issue was limited to the potential role of carbon credit projects in reducing deforestation, mitigating the main cause of greenhouse gas emissions in Brazil. Finally, they request (i) that they be excluded from being a party to the lawsuit; (ii) that the merits of the lawsuit be completely dismissed; (iii) that the value of the lawsuit be challenged and; (iv) that an expert’s report be carried out on documents relating to the properties discussed in the lawsuit. They also affirm their willingness to agree to a conduct adjustment agreement.
In May 2024, the Associação dos Ribeirinhos e Moradores claimed that it had not been shown to have acted in such a way as to cause harm. It accused Michael Greene and his wife, Evelise Greene, of running a ‘mafia’ of fraudulent carbon projects. He claimed that the Association was manipulated by the couple through various means. It requested that Evelise Pires Greene be named as a defendant and that the action be dismissed.
In June 2024, the Sindicato dos Produtores Rurais de Portel claimed that Michael Greene had been the victim of scams, despite trying to help the local population, and that this was why the Union had accepted the proposal to develop the projects. It claimed that it was illegitimately passive and that the Castanhal Agrarian Public Defender’s Office was illegitimately active. It argued that the projects are being developed in private areas, following the applicable legislation and that Project 2620 has not yet been approved and is therefore not in operation. It expressed its willingness to sign a Conduct Adjustment Agreement (TAC). Requested that the claims be dismissed. Public Defender’s Office of the State of Pará vs. Associação dos Ribeirinhos e Moradores and others (Project 2620 carbon credits and “forest carbon grabbing”) (Brazil, Pará State Court)
Brazil: Ruling extinguished the case without resolution of the merits due to the supervening loss of the object of the action.
On December 13, 2022, the Instituto Internacional Arayara de Educação e Cultura filed a Climate Public Civil Action (ACP) with a request for an injunction against the National Agency for Petroleum, Natural Gas, and Biofuels (ANP) and the Federal Union. It argues for the nullification of the inclusion of blocks located in the Santos and Campos Basins in the auction, as these areas overlap and are near Priority Areas for Biodiversity Conservation and Conservation Units. It is contended that the climate crisis demands a transition to clean energy and a reduction in carbon dioxide emissions, which is incompatible with the expansion of oil exploration in protected areas.
As an injunction, it requested:
(i) the suspension of the offering of the mentioned blocks;
(ii) the presentation of an inventory of greenhouse gas emissions that will be generated by the commercial exploitation of the blocks offered in the auction; and
(iii) the presentation by the defendants of detailed studies on the socio-environmental and economic impacts resulting from the expansion of exploration and production (E&P) activities in the Santos and Campos Basins. On the merits, it is requested that the provisional injunction be confirmed and that the defendants refrain from holding new rounds of auctions for the mentioned blocks/areas unless the technical-environmental regularity is unequivocally demonstrated, especially with reasoned opinions from bodies such as ICMBio, IBAMA, and state/municipal environmental agencies.
In June 2023, the ruling extinguished the case without resolving the merits due to Arayara’s illegitimacy and lack of interest in acting. According to the decision, Arayara was unable to demonstrate thematic relevance to be an active party in this ACP and the bidding procedure it seeks to prevent was already concluded on December 16, 2022.
Arayara filed an appeal in which it argued that it has active legitimacy to file the ACP defending the diffuse right to an ecologically balanced environment and that the fact that the auction has already taken place does not prevent it from being aware of the requests related to the greenhouse gas emissions inventory and studies on the socio-environmental and economic impacts resulting from the expansion of E&P activity. Instituto Arayara vs. ANP and Federal Union (1st Permanent Offer Cycle of Oil Concession in the Santos and Campos Basins) (Brazil, Federal District Court)