December 2023 Updates to the Climate Case Charts
Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. If you know of any cases we have missed, please email us at [email protected].
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #177:
Montana Trial Court Denied State Defendants’ Motion to Stay Judgment Pending Appeal in Youth Plaintiffs’ Constitutional Climate Case; Defendants Seek Stay in Montana Supreme Court
On November 21, 2023, the Montana District Court denied State defendants’ motion for clarification and for stay of judgment pending the defendants’ appeal of the court’s August 2023 determination that a Montana Environmental Policy Act provision limiting considering of climate change violated youth plaintiffs’ right under the Montana Constitution to a clean and healthful environment. The court first concluded that it did not have jurisdiction to consider the motion for clarification because the Montana Supreme Court has accepted the case for interlocutory appeal. Regarding the motion for stay, the district court found that the defendants failed to establish a likelihood that they would succeed on the merits of their appeal. The district court rejected any contention that the relief granted in the August 2023 order was beyond the scope of the court’s power, noting that it had not ordered the defendants “to prepare and implement a remedial climate recovery plan,” but rather had enjoined the defendants from following unconstitutional statutes. The district court also found that the defendants did not establish that considering greenhouse gas emissions and climate change impacts in environmental reviews would cause any irreparable harm, finding no evidence to support the defendants’ allegations that such consideration would “undermine Montana’s energy system, increase costs to consumers, compromise grid reliability, or cause any other irreparable harms to Defendants.” The court also rejected the defendants’ allegations that they would bear increased litigation and administrative burdens. The court found, moreover, that the youth plaintiffs would experience infringement of their constitutional rights in the absence of a stay, and that “[d]epletion or degradation of the environment and natural resources also constitutes irreparable harm.” The court also found that the public interest lay “in protecting Montana’s clean and healthful environment and in protecting the constitutional rights of all Montanans, especially the youth.” On December 1, the State agencies and the Governor filed a motion in the Montana Supreme Court requesting a stay of the district court’s August 2023 order pending appeal. Held v. State, No. DV-2020-0000307 (Mont. Dist. Ct. Nov. 21, 2023), No. DA 23-0575 (Mont. Dec. 1, 2023)
DECISIONS AND SETTLEMENTS
Ninth Circuit Rejected Fossil Fuel Companies’ Appeal of Remand Order in Oakland and San Francisco Climate Cases
In an unpublished memorandum, the Ninth Circuit Court of Appeals affirmed the remand to state court of Oakland’s and San Francisco’s climate change cases against fossil fuel companies. Citing its 2022 decisions in County of San Mateo v. Chevron Corp. and City & County of Honolulu v. Sunoco LP, the Ninth Circuit found that neither of the grounds for removal that the companies raised on appeal provided a basis for federal jurisdiction. First, the Ninth Circuit found that the companies’ actions during World War II and pursuant to ongoing specialized fuel contracts were actions taken pursuant to “arms-length business agreements,” and that the companies were not “acting under” federal officers, as would be required for removal under the federal officer removal statute. Second, the Ninth Circuit rejected the companies’ argument that the Grable exception to the well-pleaded complaint rule applied because the cities’ claims necessarily raised substantial and disputed First Amendment issues. The court noted that it was settled law that a case cannot be removed to federal court on the basis of a federal defense, even if the complaint anticipates the defense. City of Oakland v. BP p.l.c., Nos. 22-16810, 22-16812 (9th Cir. Nov. 27, 2023)
Ninth Circuit Dismissed Appeal of Order Sending EIS for Coal Mine Expansion Back to Agency for Additional Analysis
The Ninth Circuit Court of Appeals concluded in an unpublished memorandum that it lacked appellate jurisdiction to review a decision by the federal district court for the District of Montana remanding an environmental impact statement (EIS) for a coal mine expansion to the Office of Surface Mining for additional analysis, including quantification of the socioeconomic costs of the expansion’s greenhouse gas emissions. The Ninth Circuit cited the general rule that administrative remand orders are not “final” and found that the exception to this rule did not apply because an immediate appeal was not necessary for the appellant coal company and union to obtain the relief they sought, given that the district court’s decision did not foreclose the possibility of the agency reapproving the project and since the appellants could challenge any decision by the agency to block the expansion on remand. Montana Environmental Information Center v. Haaland, No. 22-36002 (9th Cir. Nov. 24, 2023)
Fifth Circuit Said Conservation Groups Could Not Appeal Preliminary Injunction Requiring BOEM to Proceed with Gulf of Mexico Lease Sale
The Fifth Circuit Court of Appeals ruled that four conservation groups lacked standing to appeal a preliminary injunction that ordered the Bureau of Ocean Energy Management (BOEM) to hold a specific oil and gas lease sale in the Gulf of Mexico that the Inflation Reduction Act required BOEM to hold by September 30, 2023. The State of Louisiana, the American Petroleum Institute, and two fossil fuel companies challenged BOEM’s decision to add restrictions to the terms of the lease sale to protect the endangered Rice’s whale. The Fifth Circuit found that the alleged injury to the conservation groups’ members depended on a “highly attenuated chain of possibilities” that was “insufficient to show injury in fact.” The Fifth Circuit additionally found that the groups failed to show that a favorable decision would redress the alleged injury. The Fifth Circuit ordered BOEM to conduct the sale in 37 days, which was the time BOEM said was required to provide notice of the sale in the Federal Register. Louisiana v. Haaland, No. 23-30666 (5th Cir. Nov. 14, 2023)
Alaska Federal Court Denied Plaintiffs’ Request for Injunction Pending Appeal in Challenge to Willow Project; Plaintiffs Filed Emergency Motion in Ninth Circuit
On December 1, 2023, the federal district court for the District of Alaska denied plaintiffs’ motions for injunction pending their appeal of the court’s judgment upholding federal approvals for the Willow Master Development Plan, which authorized oil production on leases in the National Petroleum Reserve in Alaska. The court found that the plaintiffs did not show a likelihood of success on the merits of their claims or raise serious questions going to the merits of those claims. The court also found that the plaintiffs did not establish irreparable harm from planned 2023-2024 planned winter construction activities. In addition, the court found that the balance of the equities and the public interest tipped sharply against injunctive relief pending appeal. On December 5, plaintiffs filed an emergency motion in the Ninth Circuit seeking to enjoin the federal approvals and to prevent construction and gravel mining activities that are scheduled to begin on December 21. Sovereign Iñupiat for a Living Arctic v. Bureau of Land Management, No. 3:23-cv-00058 (D. Alaska Dec. 1, 2023), No. 23-3627 (9th Cir. Dec. 5, 2023)
After Production of Records, Friends of the Earth Agreed to Dismissal of FOIA Suit Concerning Biden Administration Review of Federal Oil and Gas Leasing Program
On November 30, 2023, Friends of the Earth (FOE) and the White House Council on Environmental Quality (CEQ) agreed to the dismissal of FOE’s Freedom of Information Act (FOIA) lawsuit seeking records related to the preparation of a 2021 report on federal oil and gas permitting and leasing practices. In January 2021, President Biden directed the U.S. Department of the Interior to conduct a review of the federal oil and gas permitting and leasing program and paused new oil and gas leasing pending completion of the review, in which the Secretary of the Interior was directed to consider whether to adjust royalties associated with extracted coal, oil , and gas resources or to take other action “to account for corresponding climate costs.” In its complaint, FOE called the resulting report “underwhelming” and alleged that it might have been “modified significantly in response to political pressure from the White House and CEQ, acting at the behest of oil-and-gas industry interests and oil-producing states.” In a joint status report submitted on November 20, the parties stated that CEQ had issued a final response to FOE’s FOIA request in January 2023 and that the parties had reached an agreement in principle after engaging in settlement discussions regarding the merits and attorneys’ fees and costs since FOE completed its review of the records produced. Friends of the Earth v. Council on Environmental Quality, No. 1:22-cv-001128 (D.D.C. Nov. 30, 2023)
BOEM Agreed to Review Development and Production Plans for Offshore Drilling Off California Coast
To resolve a lawsuit brought by Center for Biological Diversity (CBD), the U.S. Bureau of Ocean Energy Management agreed to conduct reviews of development and production plans (DPPs) for offshore drilling activities on the Outer Continental Shelf off Huntington Beach. CBD alleged that federal defendants had violated the Outer Continental Shelf Lands Act and the Administrative Procedure Act by failing to review the DPPs for at least two decades. CBD’s complaint cited new information that showed that climate change and ocean warming impacts could affect offshore drilling platforms’ ability to withstand wave conditions. CBD also alleged that “[d]rilling off California contributes to the climate emergency.” In the settlement agreement, BOEM agreed to begin the process of reviewing the DPPs within 30 days of the dismissal of the lawsuit and said it intended to complete the review within one year. BOEM agreed to notify CBD of the outcome of the reviews upon their completion. The settlement agreement provided that CBD’s sole remedy for disputes concerning the adequacy of BOEM’s reviews is to seek administrative review or file a new lawsuit. Center for Biological Diversity v. Haaland, No. 2:22-cv-06996 (C.D. Cal. Nov. 15, 2023)
Montana Federal Court Said Montana Could Not Allow Wolf Trapping When Grizzly Bears Were Not Reasonably Certain to Be in Dens
The federal district court for the District of Montana enjoined the State of Montana from authorizing wolf trapping and snaring in certain areas except during the time period in January and February “when it is reasonably certain that almost all grizzly bears will be in dens.” The court found that plaintiff organizations had, “at a minimum, raised serious questions going to the merits” of their claim that Montana’s regulation extending the length of the trapping areas and expanding the area where trapping may occur was reasonably certain to result in takes of grizzly bears in violation of Section 9 of the Endangered Species Act. The court further found that the plaintiffs presented a “substantial body of evidence” that future takes of grizzly bears in legal wolf and coyote traps were reasonably certain, which established irreparable harm sufficient for a preliminary injunction. The court found, among other things, that the plaintiffs “convincingly argue[d]” that the trend of grizzly bears being active outside their dens after November 27 or before March 15 was “likely to increase due to a warmer winter climate.” Montana filed a notice of appeal. Flathead-Lolo-Bitterroot Citizen Task Force v. Montana, No. 9:23-cv-00101 (D. Mont. Nov. 21, 2023)
Settlement Required Decision on Critical Habitat for Indo-Pacific Coral Species by December 2024
Center for Biological Diversity and federal defendants entered into a stipulated settlement agreement that obligates the National Marine Fisheries Service (NMFS) to publish a final determination by December 1, 2024 concerning designation of critical habitat for seven threatened species of Indo-Pacific coral found in U.S. waters. The agreement resolved CBD’s 2023 lawsuit to compel designation of critical habitat for 12 coral species, which CBD’s complaint alleged face “existential threats of climate change and ocean acidification.” NMFS finalized critical habitat designations for five species of Caribbean coral in August 2023, which the parties agreed mooted CBD’s claim regarding those species. Center for Biological Diversity v. Raimondo, No. 1:23-cv-00809 (D.D.C. Nov. 17, 2023)
D.C. Federal Court Denied Preliminary Injunction Request in Challenge to Powder River Basin Oil and Gas Project
The federal district court for the District of Columbia concluded that two conservation organizations had standing to challenge the U.S. Department of the Interior’s record of decision for the Converse County Oil and Gas Project, which authorized 5,000 new oil wells in the Powder River Basin. The court also concluded, however, that the organizations lacked standing to challenge separately approved applications for permit to drill (APDs). The court denied the organizations’ motion for a preliminary injunction, finding that they did not demonstrate a likelihood of success on the merits of any of the claims, including claims that the Bureau of Land Management’s analysis of cumulative effects was deficient because it did not quantify greenhouse gas emissions from other projects in the region. In addition, the court found that the organizations failed to demonstrate imminent and irreparable harm and that the equities weighed against preliminary equitable relief. The court also denied a request by private intervenors’ motion to transfer the lawsuit to the District of Wyoming. Powder River Basin Resource Council v. U.S. Department of the Interior, No. 1:22-cv-02696 (D.D.C. Nov. 6, 2023)
Federal Court Dismissed Power Plant Owners’ Challenge to Washington Law’s Allocation of Emissions Allowances
The federal district court for the Western District of Washington ruled that neither an out-of-state company that alleged that it owned a Washington power plant through a chain of subsidiaries nor the in-state subsidiary that owned the power plant had standing for their constitutional challenges to the Washington Climate Commitment Act’s (CCA’s) allocation of greenhouse gas emissions allowances. The companies alleged that the CCA’s allocation of “no-cost” allowances to electric utilities but not to owners of electricity generating facilities violated the dormant Commerce Clause and the Equal Protection Clause. The court held that the parent company lacked standing for either claim because it did not own the power plant, while the subsidiary lack standing for the dormant Commerce Clause claim because, as an in-state entity, it could not allege an injury in fact. The court concluded, moreover, that their dormant Commerce Clause claims would fail even if the companies had standing because they failed to allege that the CCA discriminated against out-of-state economic interests on its face or in purpose or effect. In addition, the equal protection claim would fail because utilities and electricity generating facility owners are not similarly situated and because the different treatment of utilities and owners of electricity generating facilities was rationally related to the legitimate government purpose of mitigating the cost of electricity sold to public consumers. On November 28, the companies filed a notice of appeal. Invenergy Thermal LLC v. Watson, No. 3:22-cv-05967 (W.D. Wash. Nov. 3, 2023)
Federal Court Said Environmental Organizations Lacked Standing to Challenge Approvals of Applications for Permit to Drill
The federal district court for the District of Columbia dismissed for lack of standing a lawsuit brought by four environmental organizations to challenge more than 4,000 federal approvals of applications for permit to drill for oil and gas in New Mexico and Wyoming. The court found that the organizations failed to establish associational standing because they did not allege any individual member’s “geographic nexus to any specific well or drilling sites” affected by challenged individual APDs. The court also found that the one organization that argued that it had organizational standing failed to connect its mission to any particular APD approval or to connect changes in its resources needs to the approvals. Center for Biological Diversity v. U.S. Department of Interior, No. 22-cv-01716 (D.D.C. Nov. 1, 2023)
Minnesota Appellate Court Said Environmental Review for “Destination” Motorsports Park Must Consider Air Travel Emissions
For a second time, the Minnesota Court of Appeals reversed and remanded the City of Eagle Lake’s determination that an environmental impact statement was not required under the Minnesota Environmental Policy Act for a proposal to construct a motorsports park on approximately 230 acres of agricultural land. The project included a three-mile track for high-performance vehicles that would be a private club and also serve as a site for public events. In its supplemental environmental assessment worksheet (EAW), the City estimated the project’s annual greenhouse gas emissions and concluded that the contribution to area emissions would be “negligible” and that its “incremental contribution to global GHGs cannot be translated into effects on climate change globally or regionally.” The court found that the City’s failure to consider whether the project would increase air travel to and from the regional airport and to quantify emissions associated with such travel ignored evidence in the record and was arbitrary and capricious, given that the supplemental EAW stated that the project needed to be near the regional airport because it would be a “destination course.” The court also found that the supplemental EAW failed to adequately consider impacts to wildlife. The court’s first decision is available here. In re Determination of the Need for an Environmental Impact Statement for the Mankato Motorsports Park, No. A23-0091 (Minn. Ct. App. Nov. 27, 2023)
NEW CASES, MOTIONS, AND OTHER FILINGS
EPA Said Cases Challenging Preemption Waiver for California’s Heavy-Duty Vehicle Standards Should Be Placed on Hold Pending Outcome of Light-Duty Vehicle Cases
On November 24, 2023, EPA filed a motion in the D.C. Circuit Court of Appeals requesting that the court suspend briefing in cases challenging EPA’s Clean Air Act preemption waiver for California regulations establishing standards and requirements for heavy-duty vehicles and engines. EPA said it had become apparent after the petitioners submitted their opening briefs that “the large majority of issues” presented in these cases were already before the court in the pending cases challenging EPA’s reinstatement of California’s preemption waiver for light-duty vehicle greenhouse gas emissions standards (Ohio v. EPA) and EPA’s own standards for greenhouse gas emissions from light-duty vehicles (Texas v. EPA). EPA argued that it therefore would promote judicial efficiency and preserve parties’ resources to hold the challenges to the heavy-duty vehicle waiver in abeyance until the D.C. Circuit issues decisions in the other cases. The overlapping arguments include issues regarding the constitutionality of the waiver provision; questions regarding statutory interpretation of the Clean Air Act’s waiver provision and the relevance of the major questions doctrine, federalism canon, and constitutional avoidance canon; and disputes regarding whether EPA’s standards amount to an impermissible electric vehicle mandate. All petitioners who expressed a position on EPA’s motion opposed it. Western States Trucking Association, Inc. v. EPA, No. 23-1143 (D.C. Cir. Nov. 24, 2023)
Center for Biological Diversity Lawsuit Sought Records Regarding Interior Department’s Consideration of Petition to Reduce Oil and Gas Production on Public Lands
Center for Biological Diversity (CBD) filed a lawsuit in federal district court in the District of Columbia alleging that the U.S. Department of the Interior (DOI) was violating the Freedom of Information Act (FOIA) by failing to respond to the organization’s request for records regarding DOI’s receipt, distribution, circulation, and consideration of, and response to, CBD’s January 2022 “Petition to Reduce the Rate of Oil and Gas Production on Public Lands and Waters to Near Zero by 2035.” CBD alleged that it submitted the FOIA request in July 2023 and had received no records in response to the request. Center for Biological Diversity v. Haaland, No. 1:23-cv-03544 (D.D.C., filed Nov. 28, 2023)
Greenwashing Class Action Lawsuits Against United Airlines and KLM Alleged Misleading Claims Regarding Sustainable Aviation Fuel, Offsets
A class action complaint filed in the federal district court for the District of Maryland sought damages from United Airlines Inc. for allegedly making false and misleading representations and omissions regarding its environmental initiatives, including claims regarding the environmental benefits of sustainable aviation fuel and misleading emphasis on biofuels, given the amount of sustainable aviation fuel actually used. The plaintiff alleged that he “paid more to fly on United than he otherwise would have had he known its representations and omissions about its environmental efforts were false and misleading.” The complaint asserted that United’s conduct violated the Maryland Consumer Protection Act and constituted fraud. Zajac v. United Airlines, Inc., No. 8:23-cv-03145 (D. Md., filed Nov. 19, 2023)
A class action complaint filed in the federal district court for the Eastern District of Michigan against the operator of KLM Royal Dutch Airlines (KLM) alleged that the airline made misleading claims regarding its sustainability and its CO2ZERO program, which allows fliers to purchase carbon credits to offset emissions from flying, including through payments to reforestation programs. The complaint’s allegations included that KLM’s Climate Action Plan used targets to limit carbon emissions that were “outdated” and that the goal was “insufficient to curb dangerous global warming.” In addition, the complaint alleged that KLM made misleading claims about its use of “sustainable biojet fuel” and that the airline’s promotion of the CO2ZERO offset program was misleading because the airline “would still be required to engage in reforestation programs to meet CO2 reduction targets regardless of whether people purchased its carbon credits.” The complaint alleged that KLM flights cost more as a result of the false and misleading representations and omissions about environmental initiatives. The complaint asserted that the defendant’s conduct violated the Michigan Consumer Protection Act and constituted fraud. Simijanovic v. Koninklijke Luchtvaart Maatschappij N.V., No. 2:23-cv-12882 (E.D. Mich., filed Nov. 13, 2023)
Environmental Groups Challenged NEPA Review for Oregon Logging Project
Environmental organizations filed a lawsuit in the federal district court for the District of Oregon alleging that the U.S. Bureau of Land Management violated the National Environmental Policy Act (NEPA) in its review of an action that allegedly approved “12 years … of high-intensity, year-round logging on approximately 4,600 acres of BLM lands” in Oregon. The organizations alleged that BLM’s environmental review excluded relevant issues, including carbon sequestration and greenhouse gas emissions, from detailed analysis “on the grounds that they did not relate to the … Project’s narrowly defined purpose of timber production.” Willamette Riverkeeper v. Teitzel, No. 6:23-cv-01631 (D. Or., filed Nov. 7, 2023)
New Lawsuit in Utah Federal Court Challenged Trump Administration Oil and Gas Lease Sales
Southern Utah Wilderness Alliance (SUWA) filed a lawsuit in the federal district court for the District of Utah challenging the NEPA review for four oil and gas lease sales covering 215,325 acres of public lands in Utah. The lease sales took place in 2018 and 2019. SUWA’s allegations included that the U.S. Bureau of Land Management (BLM) had not fully analyzed and disclosed the social cost of greenhouse gases in any leasing documents that it challenged, despite the Biden administration conducting such analysis for recent Utah oil and gas leasing decisions as part of the administration’s reversal of the Trump administration’s “energy dominance” agenda. The complaint asserted a failure to take a hard look at indirect impacts of greenhouse gas emissions resulting from oil and gas development. SUWA’s allegations also included that BLM should have considered more than “just two polar opposite alternatives: offer all parcels for development or offer no parcels for development.” SUWA previously challenged the 2018 leasing decisions at issue in this case and voluntarily dismissed the lawsuit after BLM decided to suspend the leases in 2019 pending completion of supplemental analysis of greenhouse gas emissions and climate change, which was finalized in January 2021, six days before the end of the Trump administration. Southern Utah Wilderness Alliance v. U.S. Department of the Interior, No. 2:23-cv-00804 (D. Utah, filed Nov. 3, 2023)
Pennsylvania Agencies Appealed Voiding of State’s RGGI Regulation
The Pennsylvania Department of Environmental Protection (DEP) and Pennsylvania Environmental Quality Board (EQB) filed a notice of their appeal of the Commonwealth Court’s order declaring their Regional Greenhouse Gas Initiative (RGGI) regulation void. The appeal presents the question of whether the RGGI regulation’s CO2 allowances are fees (rather than taxes, as determined by the Commonwealth Court) and thus within the scope of DEP’s and EQB’s granted regulatory authority. Bowfin Keycon Holdings, LLC v. Pennsylvania Department of Environmental Protection, No. 247 MD 2022 (Pa. Commw. Ct. Nov. 21, 2023)
Environmental Groups Filed New Lawsuit Challenging New York Public Service Commission’s Approval of Cryptocurrency Company’s Acquisition of Power Plant
Two environmental organizations filed a lawsuit in New York Supreme Court challenging the New York State Public Service Commission (PSC) decision approving the transfer of ownership interests in a natural gas-fired power plant to a cryptocurrency company. The organizations asserted that the PSC failed to comply with two provisions of New York’s Climate Leadership and Community Protection Act (CLCPA) that require State agencies to consider whether actions will interfere with attainment of the CLCPA’s greenhouse gas reduction requirements or disproportionately burden disadvantaged communities. The court previously dismissed on ripeness grounds the organizations’ earlier lawsuit challenging the PSC action. The organizations, which have appealed the dismissal, filed this new lawsuit “to preserve their rights” after the PSC denied their request for rehearing. They contended “that this duplicative action is unnecessary and that the merits of their challenge should be heard in the original Article 78 petition case.” On November 16, 2023, the parties stipulated to the adjournment of the new case pending the outcome of the environmental organizations’ appeal in the earlier lawsuit. Clean Air Coalition of Western New York, Inc. v. New York State Public Service Commission, No. 910162-23 (N.Y. Sup. Ct., filed Oct. 23, 2023)
Companies Sought Indemnification from Sellers Who Allegedly Misrepresented Property’s Carbon Inventory
Two companies filed a lawsuit in state court in North Carolina asserting that they had incurred substantial liability to the California Air Resources Board (CARB), as well as other costs, due to misrepresentations by a defendant company (Heartwood Forestland Fund IV Limited Partnership (Heartwood)) regarding the amount of carbon sequestered by timberlands in West Virginia that one of the plaintiffs acquired from one of the defendants in 2017. The plaintiffs alleged that Heartwood “significantly overstated the carbon stocking” on the property when it sought carbon offsets, which CARB granted in 2017. The plaintiffs alleged that a carbon inventory conducted in conjunction with a 2023 “reverification”—which CARB requires to confirm carbon stocking—indicated that carbon stocks were “significantly below” modeled levels, resulting in a “reversal,” where the carbon stocking was below the project’s baseline. The plaintiffs alleged that the reversal would require them to purchase carbon offsets to comply with CARB requirements and to incur other costs, including legal and investigative costs and costs associated with the need to limit harvests at the property. The complaint sought a declaration that the defendants were obligated to indemnify the plaintiffs under a “Carbon Cooperation Agreement” that the plaintiffs and Heartwood entered into in conjunction with acquisition of the timberlands. The plaintiffs also requested damages commensurate with the indemnification rights. In the event the Carbon Cooperation Agreement is determined to be invalid and unenforceable, the complaint asserted an unjust enrichment claim. LFF IV Timber Holding LLC v. Heartwood Forestland Fund IV, LLC, No. 23CV 001176 (N.C. Super. Ct., filed Oct. 20, 2023)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
Belgium: Court of Appeal of Brussels Orders Authorities to Reduce GHG Emissions
Similar to the Urgenda case in the Netherlands, the Klimaatzaak—“climate case”—was brought by an organization of concerned citizens, and 58,000 citizen co-plaintiffs, arguing that Belgian law requires the Belgian government’s approach to reducing greenhouse gas emissions to be more aggressive. On June 17, 2021, the Brussels Court of First Instance held that the Belgium government breached its duty of care by failing to take necessary measures to prevent the harmful effects of climate change, but declined to set specific reduction targets on separation of powers grounds.
On November 17, 2021, Klimaatzaak appealed the judgment of the Brussels Court of First Instance. The appeal was primarily aimed at the Tribunal’s refusal to set specific binding targets related to the reduction of greenhouse gas emissions over time.
The Court of Appeal of Brussels handed down its decision on 30 November 2023. The Court confirmed the finding of breaches established at first instance (except in the case of the Walloon Region), but in addition ordered the defendant authorities to reduce their GHG emissions. Unlike the judge at first instance, the Court therefore considers that using its power of injunction against public authorities does not necessarily infringe the principle of separation of powers, provided that the judge does not take the place of the authorities in choosing the means to remedy violations.
The court ordered competent Belgian public authorities (the Federal State, Flemish Region and the Brussels-Capital Region) to reduce their GHG emissions of 55% compared to the 1990 level by 2030. The grounds of this decision are based on the breach of human rights (articles 2 and 8 of the ECHR) and civil liability rules (articles 1382 and 1383 of the (Former) Civil Code).
However, the Court reformed the first instance judgment towards the Walloon Region by establishing that this authority is already playing its role in the fight against climate change. Therefore, the Court observes that there is no breach of human rights or civil liability rules on the part of the Walloon Region. The Court suspended its ruling on the question of the penalty payment and the production of the GHG emissions reports, depending on the official figures to be produced for the period 2020-2024 by the convicted authorities. The parties have 3 months to lodge a final recourse with the Court of Cassation. (Belgium, VZW Klimaatzaak v. Kingdom of Belgium & Others)
Brazil: Political Parties Challenge Government’s Inaction on Amazon Fund, Supreme Court Orders Reactivation
On June 5, 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 the 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 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) (Federal Supreme Court, Brazil).
DECISIONS & SETTLEMENTS
United Kingdom: ASA Rules HSBC’s Environmental Claims in Ads Misleading for Omitting Significant Emissions Data
In October 2021, two posters for the HSBC Bank were seen on bus stops in Bristol and London. The first featured an aerial image of waves crashing on a shore with text that stated: “Climate change doesn’t do borders. Neither do rising sea levels. That’s why HSBC is aiming to provide up to $1 trillion in financing and investment globally to help our clients transition to net zero.” The second poster featured an image of tree growth rings with text that stated, “Climate changes doesn’t do borders. So in the UK, we’re helping to plant 2 million trees which will lock in 1.25 million tonnes of carbon over their lifetime.”
The Advertising Standards Authority (“ASA”) received 45 complaints, including from Adfree Cities, challenging the ads for being misleading. The claim was grounded on omission of significant information about HSBC’s contribution to carbon dioxide and GHG emissions. By ruling on Oct. 19, 2022, the ASA upheld the complaints. The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) requires that the basis of environmental claims be clear and that unqualified claims could mislead if they omit significant information. The ASA held that consumers would understand the ads to mean that HSBC was making, and intended to make, a positive overall environmental contribution as a company. As part of that contribution, consumers would understand that HSBC was committed to ensuring its business and lending model would help support businesses’ transition to models that supported net-zero targets. Additionally, they would understand that HSBC was undertaking an environmentally beneficial activity by planting trees which would make a meaningful contribution towards the sequestration of GHG in the atmosphere.
Whilst the ads appeared in the run-up to COP26, that did not mean consumers would understand the intricacies of transitioning to net zero. HSBC’s current financed emissions – emissions related to the customers it financed – stood at the equivalent of around 65.3 million tonnes of carbon dioxide per year for oil and gas alone. That figure was likely to be much higher once other carbon-intensive industries such as power and utilities, construction, transport, and coal mining had been analyzed and included. HSBC also intended to continue funding thermal coal mining and power production – a type of fuel that emits high levels of carbon dioxide and other GHGs – to some degree until 2040 (or 2030 in the OECD).
Some level of financing would be required for natural gas and oil production by 2050. However, that meant, despite the initiatives highlighted in the ads, that HSBC was continuing to significantly finance investments in businesses and industries that emitted notable levels of carbon dioxide and other GHGs. Consumers would not know that was the case, and it was, therefore, material information that was likely to affect consumers’ understanding of the ads’ overall message, and so should have been made clear in the ads. The ads omitted this material information and were therefore misleading.
The ASA ruled that the ads must not appear again in the form complained of. The ASA told HSBC to ensure that future marketing communications featuring environmental claims were adequately qualified and did not omit material information about its contribution to carbon dioxide and GHGs. ASA Ruling on HSBC UK Bank plc (ASA Board, UK).
United Kingdom: ASA Finds 4AIR’s ‘Eco-Friendly Aviation’ Ads Misleading, Lacking Environmental Impact Evidence
4AIR describes itself as a “sustainability solutions program dedicated to aviation.” In November 2022, a paid-for Google ad for 4AIR was seen, which stated, “Eco-Friendly Aviation – Future of Sustainable Aviation” and “Learn How To Turn Flying Into A Force For Good With A 4AIR Rating. Industry-Leading Standard For Sustainability In Private Aviation. Sustainability. Aviation Industry.” The ASA challenged whether the ad gave a misleading impression of the environmental impact of the service. By ruling on Aug. 30, 2023, the ASA upheld the challenge. The CAP Code requires that absolute environmental claims be supported by a high level of substantiation. The claims “Eco-Friendly Aviation,” “Sustainable Aviation” and “Turn Flying Into A Force For Good” would be understood by businesses to mean that 4AIR offered services that could ensure aviation operations did not cause environmental damage. Businesses would also understand from the claims that, by using 4AIR’s services, their business would be capable of having an immediate positive impact on the environment.
The ASA therefore expected to see a high level of evidence that substantiated the claims, taking into account the full life cycle of the products and services associated with 4AIR’s services. Given those services were directly linked with aviation, that meant the full life cycle of aviation operations, even though 4AIR did not itself operate aircraft. Aviation, even with the use of Sustainable Aviation Fuel, produced high levels of CO2 and non-CO2 emissions, which contributed to climate change. Further, the results of research into future aircraft technologies would not be delivered until decades into the future. Support of such an initiative via 4AIR was not, therefore, adequate substantiation to evidence the claim “Turn Flying Into A Force For Good” as it would be understood in context. Further, there were no initiatives or commercially viable technologies within the aviation industry that would adequately substantiate absolute claims such as “Eco-friendly Aviation” and “Sustainable Aviation” as businesses would interpret them in context.
The claims were, therefore, likely to mislead businesses in relation to 4AIR’s capability to ensure that aviation operations that purchased its services did not negatively impact the environment. The ad therefore breached the Code. The ASA ruled that the ad must not appear again in the form complained about. The ASA told 4AIR to ensure it did not mislead businesses by understating the environmental impact of its service, including by using absolute claims such as “Eco-Friendly Aviation,” “Sustainable Aviation,” and “Turn Flying Into A Force For Good.” This Ruling formed part of a wider piece of work on climate change and the environment. The ad was identified for investigation following intelligence gathered by the ASA’s Active Ad Monitoring system, which used AI to proactively search for online ads that might break the rules. ASA Ruling on 4Air LLC (ASA Board, UK).
United Kingdom: ASA Rules Etihad Airways’ ‘Sustainable Aviation’ Ads Misleading, Lacking Robust Environmental Substantiation
This ruling concerned two paid-for Facebook ads by Etihad Airways seen in October 2022. The first claimed “… we’re taking a louder, bolder approach to sustainable aviation” in the body of the text, and “… you’ll earn Etihad Guest Miles every time you make a conscious choice for the planet … Environmental airline of the year” in the accompanying video. The second claimed, “… we’re taking a louder, bolder approach to sustainable aviation” in the body of the text and “… we’re cutting back on single-use plastics and are flying the most efficient planes. Flights with a smaller footprint … Environmental airline of the year” in the accompanying video.
The ASA challenged whether the ads were misleading because they exaggerated the environmental benefits of flying with Etihad. By ruling on Apr. 12, 2023, the ASA upheld that challenge.
The CAP Code required that absolute environmental claims be supported by a high level of substantiation. Etihad had commented that the claim “sustainable aviation” would be understood, especially in the aviation industry, as a long-term, multifaceted goal, which included their aspiration to reach “net zero” carbon emissions by 2050. However, the ads were aimed at the general public, and they did not mention Etihad’s desire to be “net-zero” by 2050 or position the claim of “sustainable aviation” as a long-term aspiration. Etihad had commented about using modern aircraft and flight practices to reduce emissions. However, air travel continued to produce high levels of CO2 and non-CO2 emissions, which were making a substantial contribution to climate change. Many of the initiatives Etihad said they were committed to delivering were targeted to only deliver results years or decades into the future. Further, initiatives such as reducing single-use plastics and using more efficient aircraft were not adequate substantiation to evidence a “sustainable aviation” claim.
While steps were being taken by Etihad to reduce the environmental impact of its service, there were currently no initiatives or commercially viable technologies in operation within the aviation industry that would adequately substantiate an absolute green claim such as “sustainable aviation” as we considered consumers would interpret it in this context. The claim therefore exaggerated the impact that flying with Etihad would have on the environment, and the ads breached the Code. Etihad was told to ensure that their ads did not give a misleading impression of the impact caused by traveling with the airline and that robust substantiation was held to support them. ASA Ruling on Etihad Airways (ASA Board, UK).
United Kingdom: ASA Upholds Complaint Against Intrepid Travel for Misleading ‘Planet-Friendly’ Holiday Ad
In November 2022, a poster was seen on the London Underground for Intrepid Travel. The ad featured two women in front of the Giza Pyramids in Egypt, alongside the text “People & planet-friendly small group adventures since 1989.” A complaint was made to the ASA. The complainant challenged whether the claim “people & planet-friendly small group adventures” misleadingly minimized the impact of Intrepid Travel’s holidays on the environment. By ruling on May 31, 2023, the ASA upheld that complaint. The CAP Code stated that the basis of environmental claims must be clear and that unqualified claims could mislead if they omitted significant information. It also stated that claims must be based on the full life cycle of the advertised product unless the ad stated otherwise and required that marketing communications did not mislead consumers about a product’s total environmental impact. The Code further required that absolute claims were supported by a high level of substantiation.
Intrepid Travel had commented that they did not offer flights as part of their travel packages and that consumers would therefore understand that the claim was a narrow reference to their tour offering only. However, the claim was not qualified with that information. The presentation of the Giza Pyramids in Egypt within the ad, together with the claim “planet-friendly,” indicated that such tours were international and that it would be necessary to travel, in most cases by flying, to take part in their tours. The claim “people & planet-friendly small group adventures” was an absolute claim, which would be understood to mean that taking part in an Intrepid tour caused no environmental damage throughout its full life cycle. The ASA therefore expected to see evidence that demonstrated that taking part in an Intrepid Travel tour, including the necessary travel to and from the destination location, caused no environmental damage over its full life cycle.
Whilst Intrepid Travel took part in a number of environmental schemes, these did not relate to the life cycle of a holiday with Intrepid Travel, and they had not been referred to in the ad. Also, many of these initiatives were targeted to deliver results years into the future. Also, whilst Intrepid Travel had a carbon offsetting program, resulting in it being certified as carbon neutral, Intrepid Travel did not calculate all GHGs produced by their consumers traveling to and from their tour locations, nor did their offsetting program consider those emissions.
Because air travel produced high levels of both CO2 and non-CO2 emissions, which made a substantial contribution to climate change, and those emissions were not accounted for by Intrepid Travel, the absolute claim “people & planet-friendly adventures” had not been adequately substantiated. The ad had misleadingly minimized the impact of Intrepid Travel’s holidays.
The ASA ruled that the ad must not appear again in the form complained of. The ASA told Intrepid Travel to ensure that the basis of future environmental claims was made clear and did not give a misleading impression of the impact of their holidays and that robust substantiation was held to support future claims. ASA Ruling on Intrepid Travel Group UK Ltd (ASA Board, UK).
United Kingdom: ASA Finds Lufthansa’s ‘Protecting Its Future’ Ad Misleading, Lacking Environmental Impact Substantiation
A poster for Lufthansa, seen in June 2022, featured an image of the front of a plane in flight. The underside of the plane was represented by an image of the Earth from space. The ad included text which stated, “LUFTHANSA GROUP. CONNECTING THE WORLD. PROTECTING ITS FUTURE. #MakeChangeFly.” The ASA challenged whether the ad gave a misleading impression of Lufthansa’s environmental impact. By ruling on Mar. 1, 2023, the ASA upheld that challenge. The CAP Code requires that absolute environmental claims be supported by a high level of substantiation. The claim “PROTECTING ITS FUTURE” was likely to be interpreted by consumers as an environmental reference to how Lufthansa’s approach to aviation was protecting the world’s future. Further, it was likely to be understood to mean Lufthansa had already taken significant mitigating steps to ensure that the net environmental impact of their business was not harmful.
However, air travel produced high levels of both CO2 and non-CO2 emissions, which were making a substantial contribution to climate change. Many of the initiatives Lufthansa said they were committed to delivering were targeted to deliver results only years or decades into the future. There were currently no environmental initiatives or commercially viable technologies in the aviation industry which would substantiate the absolute green claim “PROTECTING ITS FUTURE,” as consumers would interpret it.
The basis of the claim had, therefore, not been made clear, and it had not been adequately substantiated, meaning the ad breached the Code. The ASA told Lufthansa to ensure that the basis of future environmental claims was made clear and did not give a misleading impression of the impact caused by traveling with the airline and that robust substantiation was held to support future claims. ASA Ruling on Lufthansa (ASA Board, UK).
United Kingdom: ASA Rules Petronas TV Ad Misleading for Omitting Significant Information on Environmental Impact
In September 2022, a TV ad for Petronas was seen. The ad began with a voice-over, spoken by a child, which said, “Our story began with a dream, to see if we could take on an industry. It wasn’t easy, but slowly, good began to happen.” Scenes of traffic moving, a port full of shipping containers, broken ice floating on the sea, litter in a river, and a forest fire were shown. The voice-over continued, “But as the world produced more energy, it became nature’s problem, and we were part of it. An answer was needed, so we started connecting the dots, to become a progressive energy and solutions partner, enriching lives for a sustainable future.” Solar panels, children in classrooms, a well under construction, and recycling in a factory were shown. The voice-over said, “To reduce emissions, grow renewable energy, bring education to more, champion social impact and promote a circular economy, as well as achieve net zero carbon emissions by 2050,” and a text stating “Net Zero 2050” was shown on screen. The voice-over continued, “Let’s connect the dots together and create a more sustainable future for all so that our next generation will always have something to look forward to,” and a child was shown looking out into the distance.
By a ruling of Jun. 7, 2023, the ASA upheld its challenge to the ad. The CAP Code requires that the basis of environmental claims be clear. It stated that claims could mislead if material information were omitted. Consumers would understand the ad to mean that Petronas was already an energy company that was contributing to a sustainable future by making progress towards emissions reductions and growing the use of renewable energy, as well as having a plan in place that would result in it achieving these goals and net zero by 2050. The acknowledgment in the ad that Petronas was part of “nature’s problem” was about their past contribution. It did not therefore counteract the claims in the ad about Petronas’s current activities and future plans.
Petronas told ASA that they were taking steps towards net zero and promoting sustainable energy, which were reflected in the ad. Other claims in the ad were said to be intended to be aspirational rather than targets that had already been achieved. However, despite that, in 2021, Petronas’ operations produced 45.2 million tons of GHGs. While viewers would recognize that companies in the oil industry were likely to be higher emitters of GHGs than many other industries, they would not understand the extent of Petronas’ continuing significant contribution to GHGs emissions given the presentation and claims in the ad, which went beyond aspirational claims. The information about the balance of Petronas’ current activities, its emissions, and the pathway to reducing them in line with the claims made in the ad was, therefore, material information likely to affect consumers’ understanding of the ad’s overall message and so should have been made clear. The ad therefore omitted material information and was misleading. The ASA ruled that the ad must not be broadcast again in its current form. The ASA told Petronas to ensure their future marketing communications did not misleadingly omit material information. This Ruling formed part of a wider piece of work on environmental claims in the energy sector, following intelligence gathered by the ASA. ASA Ruling on Petroliam Nasional Berhad (trading as Petronas) (ASA Board, UK).
United Kingdom: ASA Upholds Complaint Against Repsol Ad for Misleading Omission of Full Environmental Impact
A paid-for online display ad for Repsol, a global energy company, seen on the Financial Times website on July 12, 2023, featured an image of a water droplet with text that stated “Renewable hydrogen, another alternative to reduce emissions. At Repsol, we are committed to renewable hydrogen as an energy source that offers up different uses such as zero net emissions synthetic fuel production”. The ad also featured a series of graphics: the text “H2” encircled by two arrows; a solar panel with a sun; a car with a stylized letter “e” that had a plug at the end; a wind turbine; two arrows that formed a circle; a sapling; and a petrol pump with a leaf on it.
Adfree Cities challenged whether the ad was misleading because it omitted significant information about the overall environmental impact of Repsol’s business activities. By ruling on Oct. 18, 2023, the ASA upheld that complaint. The CAP Code stated that unqualified environmental claims could mislead if they omitted significant information.
The ad appeared on the FT website and in the FT digital energy newsletter. It would therefore have been of interest to investors and those interested in purchasing Repsol’s products. Both audiences would be interested in seeking out businesses, including oil and gas companies, who were making meaningful progress towards transitioning away from higher-carbon products and services, including those developing alternative fuels such as renewable hydrogen. However, consumers and many business readers were unlikely to be aware of the specific details of such technology – for example, that the development of renewable hydrogen was in its infancy and was not yet commercially available.
Both consumers and business readers were likely to understand the ad to mean that renewable hydrogen was an alternative to fossil fuels. The ad gave the impression that renewable energy products, including renewable hydrogen, comprised a significant proportion of the energy products Repsol developed and sold or were likely to develop or sell in the near future.
Repsol’s operations in transforming several of its industrial complexes to aid in the production of renewable hydrogen would not commence until 2024, and their development and production of renewable hydrogen were not yet in operation.
Repsol’s carbon emissions stood at 171 million tonnes of carbon dioxide equivalent (CO2e) in 2021 (50% of the emissions of the UK in 2021, 346.7 Mt CO2e), and they produced approximately 600,000 barrels of oil per day. They also had a substantial oil and gas exploration strategy, owning an interest in 40,660 acres (gross) of oil and gas development and exploration across Europe, Latin America, North America, Africa, Asia, and Oceania. Large-scale global oil and gas investment and exploration therefore formed the vast majority of Repsol’s business interests.
Further information about the proportion of Repsol’s overall business model that comprised lower carbon energy was material information that should have been included in the ad. It therefore omitted material information and was likely to mislead. The ASA ruled that the ad must not appear again in the form complained of. It told Repsol to ensure that their future ads featuring environmental claims did not mislead by omitting significant information about the proportion of their business activities comprising renewable energy, or the role renewable energy and renewable hydrogen played in their business activities. ASA Ruling on Repsol SA (following a complaint by Adfree Cities) (ASA Board, UK).
United Kingdom: ASA Rules Shell Ads Misleading for Exaggerating Low-Carbon Energy Contributions in Business Model
This ruling concerned a poster, a TV ad, and a YouTube ad for Shell. The poster was seen in Bristol in June 2022. It featured in large text, “BRISTOL is READY for Cleaner Energy” and included Shell’s logo. The TV and YouTube ads, also seen in June 2022, depicted some of Shell’s business activities in 2022 and focused on more environmentally friendly energy products. Adfree Cities challenged whether the ads were misleading. By ruling of Jun. 7, 2023, the ASA upheld that complaint.
Consumers were increasingly concerned about the environmental impact of activities related to higher-carbon products and services, and would be interested in seeking out businesses, including oil and gas companies, that were making meaningful progress towards transitioning away from higher-carbon products and services. However, they were unlikely to be aware of the details of this in relation to specific companies, and ads were, therefore, likely to mislead consumers if they misrepresented the contribution that lower-carbon initiatives played, or would play in the near future, as part of the overall balance of a company’s activities.
In the absence of qualifying information, the cumulative effect of the ads was to give the impression that low-carbon energy products comprised a significant proportion of the energy products Shell invested in and sold in the UK in 2022 or were likely to do so in the near future.
Shell said they were taking steps towards net zero and promoting sustainable energy. However, according to Shell’s 2021 Sustainability Report, its operations gave rise to GHG emissions in 2021 that were estimated as equivalent to 1,375 million tonnes of carbon dioxide.
Large-scale oil and gas investment and extraction comprised the vast majority of the company’s business model in 2022 and would continue to do so in the near future. Because the ads gave the overall impression that a significant proportion of Shell’s business comprised lower-carbon energy products, further information about the proportion of Shell’s overall business model that comprised lower-carbon energy products was material information that should have been included. Because the ads did not include such information, they omitted material information and were likely to mislead.
The ASA ruled that the ads must not appear again in the form complained of. The ASA told Shell to ensure their future ads featuring environmental claims did not mislead by exaggerating or omitting material information about the proportion of their business activities that were comprised of lower carbon activities. A related complaint concerning the use by UK households of renewable electricity from Shell was not upheld. ASA Ruling on Shell UK Ltd (following a complaint by Adfree Cities) (ASA Board, UK).
United Kingdom: ASA Upholds Complaint Against The Pack for Misleading Environmental Claims in Vegan Dog Food Ad
The Pack is a supplier of vegan dog food. On Jun. 12, 2022, a post was seen on the Pack’s Facebook page which featured a video that started with several images of bowls filled with vegetables. The bowls were then shown filled with dog food. The video then showed dogs eating various The Pack products. On-screen text at the end of the video stated, “THE PACK. JOIN THE PACK FOR A HEALTHIER DOG & PLANET.” A caption accompanying the video stated, “Better for The Planet.” A complaint was made to the ASA, challenging whether these claims were misleading and could be substantiated.
By a ruling of Nov. 2, 2022, the ASA upheld that complaint. The CAP Code requires that the basis of environmental claims must be clear. The Code also stated that claims must be based on the full life cycle of the advertised product unless the ad stated otherwise. The claims in the Pack’s ad were broad and non-specific. One possible interpretation was that the products shown were less detrimental to the environment than their conventional meat-based equivalents across their life cycles. Because the basis of the claims had not been made clear and were not based on a full life cycle analysis of the products, the ASA concluded the ad did not comply with the rules of the Code on environmental claims. ASA Ruling on The Pack Pet Ltd (ASA Board, UK).
United Kingdom: Court of Appeal Denies Permission to Challenge Bristol Airport Expansion, Upholding High Court’s Dismissal of Climate-Related Grounds
In February 2022, planning permission was granted for the expansion of Bristol Airport. The decision permitted an extra 2 million passengers per year, an increase of 20%. The decision was made on behalf of the Secretary of State by a panel of planning inspectors and was challenged on public law grounds by a network of members of environmental organizations and of local residents. In January 2023, the High Court gave judgment, dismissing the claim, including the five climate-related grounds that were advanced.
The panel did not err in its interpretation of local planning policies. It was entitled to conclude that these policies did not directly address aviation emissions. The panel’s reasoning was lawful. Nor did the panel err in its interpretation of national policy on ‘Making best use of existing runways,’ and its reasoning for this interpretation was lawful. The panel considered whether the predicted aviation emissions would have a material impact on the government’s ability to meet its climate change targets and budgets. The panel did not err in its approach to paragraph 188 of the National Planning Policy Framework. Under that policy, the focus of planning decisions should be on whether a proposed development is an acceptable use of land, rather than on the control of emissions where these are subject to separate pollution control regimes. When applying this policy, the panel was entitled to treat the Climate Change Act 2008 as a “separate pollution control regime.” The panel was entitled to give no weight to evidence that the increased emissions would consume a local carbon budget for the council area. It reached this conclusion on the ground that such budgets have no basis either in law or in policy. That was rational and lawful.
Nor did the panel’s approach to the impact of non-CO2 emissions from aircraft breach the Environmental Impact Assessment Regulations 2017. The panel was entitled, in the exercise of its planning judgment, to refuse to make use of an official multiplier of 1.9 designed to take account of non-CO2 effects. On this, the Climate Change Committee’s attitude was plainly of high relevance, and the Committee’s view was that non-CO2 emissions should not be included within the UK’s net zero target. Further, the developer’s environmental statement was lawful. There currently exist scientific uncertainties in assessing non-CO2 effects. It was open to those preparing the environmental statement to decide, as they did, to leave non-CO2 emissions to be dealt with until science enables them to be brought into account for the purposes of the Climate Change Act. As was the case in R(Friends of the Earth Ltd) v Heathrow Airport Limited  UKSC 52, there was no “space” in the present case for the operation of the precautionary principle. In May 2023, it was reported that the Court of Appeal had refused the claimant permission to appeal the High Court’s ruling, bringing the litigation to an end. R(Bristol Airport Action Network) v Secretary of State for Levelling Up, Housing and Communities (expansion of Bristol Airport) (High Court of Justice, UK).
Canada: Supreme Court of Canada Partially Strikes Down Impact Assessment Act, Citing Excess Federal Power and Constitutional Overreach
In 2019, Parliament enacted the Impact Assessment Act (“IAA”) and the Governor in Council made the Physical Activities Regulations (“Regulations) under the IAA. The IAA and Regulations create two schemes in one: (1) sections 81 to 91 of the IAA deal with projects carried out or financed by federal authorities on federal lands or outside of Canada; and (2) the balance of the scheme deals with “designated projects” as defined in the IAA and makes them subject to federal review. Alberta’s Lieutenant Governor in Council referred two questions to the province’s Court of Appeal that were later appealed to the Supreme Court of Canada regarding the constitutionality of the IAA and Regulations. On October 13, 2023, a majority of the Alberta Court of Appeal held that the IAA and Regulations were ultra vires Parliament and unconstitutional in whole. A 5-2 majority of the Supreme Court of Canada upheld the decision in part, finding sections 81 to 91 constitutional but the balance of the scheme ultra vires and thus unconstitutional.
In the majority decision, Chief Justice Wagner concluded that the designated projects scheme exceeds federal jurisdiction for two main reasons. Firstly, the scheme focuses on a broad range of factors without specifying how they should influence the decision, shifting the decision-making away from regulating federal impacts and granting the decision-maker excessive power to regulate projects beyond federal jurisdiction. Secondly, the IAA’s definition of “effects within federal jurisdiction” is overbroad and goes beyond the limits of federal jurisdiction in Canada’s Constitution, treating all designated projects the same regardless of whether federal Parliament has jurisdiction over them. This lack of tailoring to exclusive federal jurisdiction and the broad scope of “effects within federal jurisdiction” exacerbates the constitutional frailties and erodes the balance of powers in the Canadian federal state.
Notably, the majority recognized that environmental protection is one of today’s most pressing challenges and that Parliament has the power to enact a scheme of environmental assessment to meet this challenge, but highlighted Parliament has the duty to act within the enduring division of powers framework laid out in the Constitution. Chief Justice Wagner also specifically noted that the matter of national concern recognized by the Supreme Court of Canada two years earlier in the GGPPA Reference – that of establishing a minimum national standard of carbon pricing of GHG emissions – does not extend to enabling the federal government to comprehensively regulate GHG emissions or sweeping regulatory powers in impact assessment legislation.
A week after the Supreme Court of Canada’s decision was released, the federal government released interim guidance on the IAA and the federal government has indicated that it will work “quickly” to introduce amendments to the IAA and Regulations. Reference Re Impact Assessment Act (Supreme Court of Canada, Canada).
Canada: Federal Court Upholds Minister’s Approval of Bay du Nord Project, Dismissing Environmental NGOs’ Claims and Consultation Concerns
The Applicants, three environmental non-profit organizations, challenged the decision of the federal Minister of Environment and Climate Change to approve the environmental assessment report of the Bay du Nord Development Project, an offshore oil production project in the Atlantic Ocean. The Applicants claimed that the Minister’s decision was unreasonable because it is based on a report that fails to consider the downstream impacts of GHG emissions and marine shipping of oil from the project. The Applicants also claimed that the Minister’s decision was invalid because the Crown failed to properly consult and accommodate the Mi’gmawe’l Tplu’taqnn Incorporated (“MTI”), a not-for-profit organization representing eight Mi’gmaq communities in New Brunswick, on marine shipping.
The Federal Court concluded that the Minister’s decision was reasonable and the Crown had met its duty to consult before reaching the decision under review and dismissed the application.
On the failure to consider the impacts of downstream GHG emissions and marine shipping, the Court found that downstream GHG emissions were not within the legislative authority of Parliament, as they could occur anywhere in the world and for various purposes, and the Impact Assessment Agency of Canada (“Agency”) would be speculating if it tried to assess them. The Court also found that the Agency’s decision was consistent with previous regulatory decisions that did not require the consideration of downstream GHG emissions, and the Agency had a wide margin of appreciation in determining the scope of the project.
On the failure to consult, the Court found that the Crown had met its duty to consult before reaching the decision under review. The Court held that the Agency had reasonably determined the degree of consultation required based on the low level of potential impacts and the unlikeliness of such impacts to the rights held by the groups represented by MTI, and further found that the Agency had provided MTI with multiple opportunities to raise their concerns and provide comments, which were considered and responded to by the Agency and the Minister. The Court found that the Crown was not required to agree with the concerns raised by MTI or to reach agreement or perfection in the consultation process. In September 2023, the Applicants announced that they have filed an appeal in the Federal Court of Appeal. Sierra Club Canada Foundation et al. v. Minister of Environment and Climate Change Canada et al. (Federal Court, Canada).
Czech Republic: Supreme Administrative Court Overturns Ruling on Climate Change Lawsuit, Case Dismissed by Prague Municipal Court
On April 21, 2021, a group of Czech citizens filed suit against the government of the Czech Republic for its inaction on climate change and the human rights harms this inaction is causing. Plaintiffs include climate action NGO Klimatická žaloba ČR, a municipality (Svatý Jan pod Skalou), and four individuals, and defendants named are the Ministry of the Environment, the Ministry of Industry and Trade, the Ministry of Agriculture ,the Ministry of Transport, and the Government of the Czech Republic. Plaintiffs allege that the government, by failing to adequately address climate change, is violating Czech citizens’ rights to life, health, environment, and others that are guaranteed by the Czech constitution, the EU Charter of Fundamental Rights, and the European Convention on Human Rights. Plaintiffs plan to present evidence that country has a limited carbon budget in order to meet its constitutional and Paris Agreement obligations, and that the government’s Climate Protection Policy allows for emissions 2.5 times higher than the carbon budget allows. Plaintiffs seek a court order for the government to take necessary measures to maintain a carbon budget of 800 Mt CO2 from January 2021 until the end of the century, and to take necessary measures to adapt to climate change.
On June 15, 2022, the Prague Municipal Court upheld the lawsuit and ordered the state to urgently take the necessary measures to slow climate change. The Court ruled that the state’s failure to take sufficient GHG mitigation measures is unlawful and that the state should abstain from continuing to infringe the plaintiffs’ rights by such failure. The court derived the obligation to mitigate climate change from the Paris Agreement and the EU Climate Law (which sets the target to reduce greenhouse gas emissions by 55% by 2030 compared to 1990), as the Czech Republic does not have a climate act yet. State authorities are obliged to have a plan of precise and complete measures to achieve this goal, which is not yet set in place. While the Court concluded that the goals of the Paris Agreement (of keeping the increase in global temperatures below 2oC) is not legally binding, the national contribution of the Czech Republic cannot be avoided. Avoiding these climate goals would threaten the plaintiff’s constitutionally guaranteed rights. The government cannot absolve itself of its climate responsibility by noting its small contribution to climate change.
On February 20, 2023, the Supreme Administrative Court of the Czech Republic overturned the decision of the Prague Municipal Court and referred the case back to the first instance court (the Prague Municipal Court). The main reason for the reversal of the first instance decision is the collective character of the EU’s obligation to reduce its GHG emissions by 55% by 2030 and the fact that the specific distribution of the obligations to Member States is currently still subject to legislative and political negotiations. The Supreme Administrative Court also stated that plaintiffs should further specify in which specific areas the defendants’ alleged passivity breached their obligations, which specifically interfere with the applicants’ rights. A public hearing was conducted on October 25, 2023 and the Prague Municipal Court dismissed the case. The plaintiffs have announced that they are willing to go to the Supreme Administrative Court and to the Constitutional Court. Klimatická žaloba ČR v. Czech Republic (Prague Municipal Court, Czech Republic).
Estonia: Supreme Court Upholds Claims Against Forest Felling, Citing Impact on Biodiversity and Green Network Viability
In May 2021, the Environmental Board registered ten forest notifications and permitted felling of forest on 8.5 hectares of land, including clear-cutting on 4.4 hectares. The affected land is located in the central areas of the green network as set out in the county-wide spatial plan. According to the Planning Act, a green network is a system of natural and semi-natural biotic communities whose aim is to ensure the preservation of various types of ecosystems and landscapes and counteract the impact of human settlement and economic activities.
Päraküla selts MTÜ, a local environmental NGO, filed two complaints to the Tallinn Administrative Court and requested the annulment of the decisions to register the forest notifications. The claimant alleged that the forest felling in such a biodiverse area – the habitat of 20 endangered bird species – threatens the functioning of the green network. They further claimed that as the Environmental Board had not substantiated the decisions, it was impossible to assess whether they had considered the impact of forest felling on biodiversity in that area. Related to climate change, the claimant pointed out that forests have a crucial role in mitigating climate change (by sequestering carbon) and adapting to climate change and that the Environmental Board did not assess the climate impact of the forest felling at all. In November and December 2021, the Tallinn Administrative Court dismissed the claims. The Circuit Court also dismissed the claims on similar grounds.
The Supreme Court of Estonia joined the two claims. On September 28, 2023, the Supreme Court upheld the claims and deemed the decisions to register the forest notifications illegal. The main conclusion of the Court was that before issuing a forest notification, the Environmental Board must ensure that it does not threaten the viability of the green network and take into account the endangered species in the affected areas.
Related to climate change, the Court reaffirmed that climate change mitigation and adaptation are among the main purposes of a green network. However, the Court found that the Environmental Board did not have to assess the climate impact of any single forest notification, because the impact of a single forest felling can obviously not prevent Estonia from fulfilling its climate targets. On the other hand, there are no guidelines in force that the Environmental Board should use to estimate the cumulative impact of forest fellings, nor are there any principles for distributing the “quota” of climate impact between multiple forest notification applicants. The Court stated that general climate targets do not give rise to a “moratorium” on forest felling. Therefore, the Court concluded that the climate impacts of forest felling were not a reason to annul the decisions to register the forest notifications. Päraküla selts MTÜ vs. Environmental Board (Supreme Court, Estonia).
Estonia: Supreme Court Annuls Shale Oil Plant Permit, Citing Environmental Assessment Deficiencies and Constitutional Climate Change Obligations
In May 2020, the Tartu Administrative Court allowed a complaint by Fridays for Future Estonia (officially MTÜ Loodusvõlu), an organization of young Estonian climate activists, seeking to nullify a permit issued to the state-owned energy group Eesti Energia for the construction of a new shale oil plant. Shale oil is a fossil fuel produced from oil shale (a coal-like fossil fuel found in Estonia) and exported outside the EU to be used as fuel on long-range ships. Fridays for Future alleged that the municipality of Narva-Jõesuu issued the construction permit without adequately assessing its climate impacts and the commitments made under the Paris Agreement, as well as the European Union’s objective to achieve climate neutrality by 2050. The court named two Eesti Energia subsidiaries as third parties, and the Ministry of the Environment (now Ministry of Climate) as an administrative body.
In 2022, the Supreme Court of Estonia accepted the complaint but denied a request for preliminary injunction. On October 11, 2023, the Supreme Court upheld the claim and nullified the construction permit. Although the case was mostly built on climate arguments, especially on the shortcomings of climate impact assessment, and most of the Supreme Court’s judgment focuses on climate change matters, the court eventually did not nullify the construction permit on climate change grounds, but because there were other deficiencies with the environmental impact assessment, such as the failure to evaluate the impact on another Natura 2000 area and to evaluate climate sensitivity (or resilience) of the installation.
For the first time in Estonia, the Supreme Court stated that the mitigation of climate change is a constitutional obligation. More precisely, the Estonian constitution requires a proportionate contribution to the Paris Climate Agreement’s goal to keep the global average temperature increase significantly below two degrees, preferably within 1.5 degrees of pre-industrial levels.
The court stated that the emissions of the plant should be compared to Estonian national climate targets to assess whether the plant’s climate impact is unacceptably large. Therefore, Scope 3 emissions that are emitted outside the borders of Estonia do not need to be accounted for. The court also explained that the oil plant operator’s participation in the EU Emissions Trading System (ETS) may not be sufficient to meet Estonia’s national climate targets and additional national targets may be necessary.
In 2020, when the permit was issued, Estonia had very relaxed climate targets. The court considered it justified to base the climate impact assessment on these and did not agree that the authority should have taken into account the EU climate neutrality target, because, despite the government agreeing to it, at the time, it was not legally binding. The Supreme Court found that the construction of the plant does not obviously prevent Estonia from fulfilling these relaxed targets. Therefore, the climate impact was not the reason to nullify the permit. However, the court explicitly noted that when the integrated environmental permit is issued in the near future, the related impact assessment must be based on the recently updated stricter climate targets.
The court made it clear that the authority must deny a permit to a project with a significant climate impact unless there is an overriding ‘existential state interest’ that would outweigh it. Otherwise, it will unduly restrict the freedoms of individuals or the public interest in the future to curb climate change. The greater the risk of missing the climate targets, the greater must be the overriding interest. The court implied that if the risk of meeting the climate targets cannot be clearly excluded, the authority should not grant a permit to this project because, in the view of the court, in the case in question, no such ‘existential state interest’ can be detected at present. The court ordered the municipality of Narva-Jõesuu to assess the environmental impacts that had not been properly assessed before and decide again whether to grant a new construction permit. Fridays for Future Estonia v. Eesti Energia (Supreme Court, Estonia).
Aarhus Convention Compliance Committee, United Nations: Compliance Committee Declares Complaint Against Italy Inadmissible, Citing Ongoing Development of National Energy and Climate Plan
On August 4, 2023, environmental justice NGO A Sud Ecologia e Cooperazione (A Sud) filed a communication against Italy with the Aarhus Convention Compliance Committee. A Sud alleges that Italy has not fulfilled its obligations under the Aarhus Convention when updating its National Energy and Climate Plan (NECP) – under Regulation (EU) 11 December, No. 2018/1999 on the Governance of the Energy Union and Climate Action, each EU Member State has to notify the European Commission an integrated NECP by 31 December 2019, and subsequently by 1 January 2029 and every ten years thereafter.
A Sud argued that Italy violated Articles 7, taken in conjunction with Article 6 paras 2, 3, 4, 8 of the Convention, by failing to provide timely and adequate public information and participation at an early stage in the process of adopting the updated Italian NECP proposal, which was allegedly communicated to the European Commission without consideration of public opinion. According to A Sud, Italy would have also breached Articles 3 and 5 of the Convention, because it did not set up a website or electronic database dedicated to the NECP with all the relevant documents available in order to provide public information and participation.
During the Compliance Committee’s 18th meeting held on 19–22 September 2023, the Committee, having heard the views of both the communicant and the Party concerned, noted that “Italy’s updated national energy and climate plan is currently still in draft form and will yet undergo a strategic environmental assessment procedure, including public participation, prior to the submission of the final updated plan to the European Commission in June 2024”. Accordingly, the Committee determined the communication to be inadmissible (for being incompatible with decision I/7, since the preparation of the updated plan had not yet been completed). A Sud Ecologia e Cooperazione Odv ETS v Italy (Aarhus Convention Compliance Committee, United Nations).
Switzerland: Fair Advertising Commission Upholds Complaint Against Kübler Heizöl for Misleading ‘Climate Neutral’ Heating Oil Claims
The Fair Advertising Commission (FAC) is a non-judicial body that examines complaints alleging violations of the Swiss Fairness Principles in Commercial Communication. The Foundation for Consumer Protection (Stiftung für Konsumentenschutz) filed a complaint with the FAC against a heating oil provider (Kübler Heizöl) concerning the company’s advertisement of its heating oil product as “climate neutral” (case 168/23).
The FAC held that this advertisement was misleading and recommended that the company refrain from it: “The complaint is upheld. The respondent is recommended to refrain from making the contested statement “heating oil is climate-neutral” in future, unless it creates a clear reference to the company and can provide full proof at the time of communication that all climate-relevant effects associated with production have been calculated using generally accepted methods, as well as unquestionable proof that these climate-relevant effects have been fully offset.” (translation from German). Stiftung für Konsumentenschutz v. Kübler Heizöl (Fair Advertising Commission, Switzerland)
Switzerland: Fair Advertising Commission Rules Against Hipp’s ‘Climate Positive’ Baby Food Jar Ads as Misleading
The Foundation for Consumer Protection (Stiftung für Konsumentenschutz) filed a complaint with the FAC against a German producer of baby food (Hipp) concerning the company’s advertisement of its baby food jars as “climate positive” (case 169/23). The FAC held that this advertisement was misleading and recommended that the company refrain from it: “The complaint is upheld. The respondent is recommended to refrain from making the contested statement “Our jars are climate-positive” in future, unless it can provide full proof at the time of communication of the calculation of all climate-relevant effects associated with production carried out in accordance with generally accepted methods, on the one hand, and unambiguous proof of the full overcompensation of these effects, on the other. climate-relevant effects associated with the production on the one hand and, on the other hand, unquestionable proof of the complete overcompensation of these climate-relevant effects climate-relevant effects.” (translation from German). Stiftung für Konsumentenschutz v. Hipp (Fair Advertising Commission, Switzerland).
United Kingdom: High Court Dismisses Challenge Against Government’s Approval of Oil and Gas Exploration Near Dunsfold, Claimants Plan Appeal
In June 2022, the UK government granted an exploratory planning permission for UK Oil & Gas to explore for oil and gas near the village of Dunsfold in Surrey, close to an Area of Outstanding Natural Beauty (AONB). This came after Surrey County Council had refused the scheme, with the government thereby overturning the Council’s decision. The claimants are now challenging the government’s decision to grant the planning permission. In July 2023, the High Court dismissed the challenge.
The claimants argued that:
- the Secretary of State had not complied with a national policy requiring him to give “great weight” to conserving and enhancing landscape and scenic beauty as the starting point in his decision (ground 1);
- the Secretary of State failed to explain a key inconsistency in his decision-making, which makes it unlawful. Namely, the same day the Secretary of State allowed the project at Dunsfold, he refused permission for a similar scheme because of its potential impact on the climate due to greenhouse gas emissions. Emissions from the proposal at Dunsfold would be higher than the other scheme (ground 2).
The judge dismissed both grounds. She found:
- on ground 1: That the Secretary of State had reached an adequate interpretation of the policies when considering exploratory planning in an area of AONB.
- on ground 2: The ‘similar scheme’ at Ellesmere Port was refused for distinct reasons, specifically that of climate change whereas at Dunsfold this was not the sole reason for refusal, meaning there is not an issue of inconsistency in the decision.
As of August 2023, a press release was issued from the claimant’s law firm, confirming their plans to submit an application for permission to appeal. Protect Dunsfold Ltd v Secretary of State for Levelling Up, Housing and Communities; Waverley Borough Council v SSLUHC (High Court of Justice, UK).
United Kingdom: High Court Rejects Coal Action Network’s Challenge Against Expansion of Aberpergwm Coal Mine, Appeal Granted on Certain Findings
In 2020, private company Energybuild Ltd applied to the UK Coal Authority to deconditionalise the remaining conditional part of a coal mine license, relating to a site in Aberpergwm, Wales. The purpose of the application was to expand mining operations. Emissions relating to the proposed expansion were estimated at approximately 100 million tonnes of CO2 from the combustion of the coal and 1.17 million tonnes of methane gas until the license expires in 2039. In January 2022, the Coal Authority approved the application, resulting in a public law challenge by Coal Action Network, a group that aims to end coal use within the UK. The challenge was heard by the High Court in March 2023. In May 2023, the claim was rejected.
The judge dismissed ground 1. Whilst Welsh Ministers now have the power to approve or decline authorizations for coal mining in Wales, that power was not applicable. The license in question was granted before the power came into force, and there was a presumption against legislation having a retrospective effect, which was applied here.
The judge dismissed ground 2, which alleged the Coal Authority had interpreted its statutory powers too narrowly and, as a result, ignored relevant considerations concerning climate policy and climate impacts. The matters relied on by the claimant were not material to the Coal Authority’s task, which was to determine whether the conditions precedent in the conditional licenses had been fulfilled. The Coal Policy Statement, relied on by the claimant, only expresses what the Welsh Ministers’ intend to do, or not do, in future with respect to coal extraction. The statement was not relevant to the Authority’s limited task of determining whether the conditions precedent were satisfied. Nor were the adverse climate change impacts, and the effect on the Welsh Ministers’ ability to meet their climate change targets, relevant to whether the conditions precedent were satisfied. On May 31, 2023, the judge granted the appellants permission to appeal certain findings in her judgment. It is not known when the Court of Appeal will hear that appeal. R (Coal Action Network) v Coal Authority and Welsh Ministers (High Court of Justice, UK).
United Kingdom: High Court Dismisses Challenge to Secretary of State’s Carbon Emission Assessments for A47 Road Schemes; Appeal Granted by Court of Appeal
At various dates in 2022 the Secretary of State granted development consent for three road schemes along the A47 in Norfolk, England. The schemes were all within a twelve-mile radius of the city of Norwich. They would create two new dual carriageways and develop an existing road junction. Before consenting to each scheme, the Secretary of State assessed the carbon emissions expected to be generated by each scheme. He concluded that, when compared with the UK’s national carbon budgets, the increase in emissions from each scheme would not be significant.
The claimant brought public law challenges to each of the three decisions. He challenged the Secretary of State’s failure to compare the combined carbon emissions from the three A47 schemes against the UK’s national carbon budgets. Giving judgment in July 2023, the High Court dismissed the claim, holding:
1. The question of what impacts should be addressed cumulatively; how the cumulative impacts might occur; whether the effects are likely to be significant and if so how they should be assessed are all matters of evaluative judgment.
2. The decision makers chose to assess the significance of carbon emission against a national target (UK carbon budgets). Other benchmarks were considered but discounted. The benchmark for the assessment of significance was a matter of judgement for the decision maker.
3. The use of national carbon budgets as a benchmark for the assessment of carbon emissions has been confirmed as a lawful approach (R (GOESA) v Eastleigh Borough Council).
4. The decision makers also proceeded on the basis that there is no geographic limit to the impact of GHG emissions. Their impact is on the global atmosphere. That is a scientific assessment to which the Court affords respect (R (Mott)v Environment Agency).
5. In circumstances where the significance of carbon emissions is being assessed against a national target and the impacts of GHG emissions do not have a geographical limit, there is a logical coherence to the Secretary of State’s decision not to undertake a comparison of combined emissions against the national target.
6. Whilst compliance with relevant industry guidance does not, of itself, demonstrate compliance with Environmental Impact Assessment Regulations, it is a legitimate way for the Court to assess the exercise of judgment in circumstances where there is no single prescribed approach to the assessment of cumulative carbon impacts or to gauging the significance of the climate impacts of a development project in the context of EIA.
7. There is no scientific rationale for the selection of a particular collection of local schemes for comparison against a national target.
8. The fact that there may be other approaches to the assessment of cumulative impacts, does not take the Secretary of State’s approach outside the range of reasonable responses available to him as the decision maker, or mean that it was based on flawed reasoning.
9. The Court was not persuaded that his approach to the assessment of cumulative carbon emissions was unlawful and/or in breach of the IEIA Regulations.
In October 2023 the Court of Appeal granted the claimant permission to appeal the High Court’s ruling, stating that the main ground of appeal had a ‘real prospect for success.’ R (Boswell) v Secretary of State for Transport (A47 road extension)(High Court of Justice, UK).
Brazil: MPF and MPPR Challenge Forest Code Interpretation in Legal Action Against IBAMA and IAT
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 of 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 decision was later overturned by the Chief Justice of the Superior Court of Justice (STJ), who ruled that this decision was damaging to the public economy and could cause irreversible damage to the public purse. A definitive judgment on the merits is still pending. 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) (Federal Civil Court of the State of Paraná, Brazil).
Canada: Environmental Coordinator Pleads Guilty to False Information Charges
In May 2023, Amberg Corp., along with its senior environmental regulatory coordinator, Olga Kiiker, were charged with 25 counts of false and misleading information, providing functions of a third-party assurance provider without the required qualifications, and failing to comply with the rules and requirements set out in the Standard for Validation, Verification and Audit under the provincial Emissions Management and Climate Resilience Act and the Technology Innovation and Emissions Reduction Regulation.
In November 2023, Ms. Kiiker pleaded guilty to one count for knowingly providing false and misleading information pursuant to a requirement under the Emissions Management and Climate Resilience Act and all remaining charges against her were withdrawn. Ms. Kiiker was sentenced to pay a $10,000 fine inclusive of the victim surcharge. She is also prohibited from engaging in any employment that may involve collecting, analyzing, reporting, validating, verifying or auditing environmental data for three years and was ordered to prepare an article for publication in the Environmental Services Association of Alberta Weekly News publication in 2024 where she informs the public of the consequences of her mistakes as an environmental services provider. No conclusion has been reached on the charges against Amberg Corp. Amberg Corp. and Olga Kiiker (Alberta Court of Justice, Canada).
NEW CASES, MOTIONS, AND OTHER FILINGS
United Kingdom: Opportunity Green Files ASA Complaints Against Cruise Industry for Misleading ‘Green’ Fuel Advertising, Awaiting Ruling
In September 2023, campaign group Opportunity Green issued complaints to the ASA over what it described as “the cruise industry’s systemic misleading advertising of fossil LNG as a ‘green’ fuel.” Alongside the complaints, Opportunity Green also published a report, “(Un)Sustainable from Ship to Shore,” which it says “highlights the systemic nature of the cruise industry’s apparently misleading advertising, including claims being made by some of the biggest international cruise companies such as Carnival, MSC Cruises, Princess Cruises, and Costa Cruises.”
The report identifies three key communication strategies said to be being used by several companies that risk breaching advertising rules in the UK. These are:
1. Advertising the use of fossil LNG as reducing emissions
2. Advertising fossil LNG as environmentally friendly
3. Advertising the use of fossil LNG as specific initiative of reaching net zero by 2050
A ruling on the complaints by the ASA is pending. ASA complaint on cruise operators by Opportunity Green (ASA Board, UK).
United Kingdom: New Weather Institute Challenges FIFA’s Carbon-Neutral Claims for 2022 World Cup, Alleging Misleading Advertising and Environmental Breaches
In November 2022, the New Weather Institute (the Complainant) submitted a complaint against FIFA to the ASA, the self-regulatory organization of the advertising industry in the UK. The Complainant alleges that FIFA’s claims that the 2022 World Cup in Qatar was carbon-neutral are wrong and likely to mislead consumers in the UK, therefore breaching multiple provisions of the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (“the Code”), and specifically the provisions on misleading advertising and environmental claims. FIFA presented the 2022 Qatar World Cup as “fully carbon-neutral” in its online presence. It operated a “climate pledge” mechanism targeting ticket holders, requesting them to make efforts towards reducing their carbon footprint in their daily life, and informing those taking the pledge that their emissions were offset by FIFA.
In particular, the Complainant alleges that FIFA: Firstly, ignored emissions reductions as an essential part of carbon neutrality; it did not demonstrate that it has done everything it can to reduce its own emissions prior to compensating for the remaining emissions (e.g. when it decided to attribute the 2022 World Cup to Qatar, a country with little football infrastructure in place). Secondly, used unsound methodology for its GHG accounting, breaching the Code by only partially accounting for the life cycle of the stadiums, by sending wrong signals regarding the stadiums’ impact on the environment, and by not taking into account day shuttle flights advertised for by Gulf regional airlines when calculating flight emissions of ticket holders. Thirdly, and more broadly, it is generally claimed that a mega-event like the World Cup can be compensated with offsetting. The carbon credits bought by FIFA fail to meet some of the carbon market standards, as they lack additionality and do not permanently remove carbon. Further, the Code was allegedly breached by FIFA by failing to reach the level of substantiation required for an absolute statement like that of carbon-neutrality.
By claiming carbon neutrality in this way, FIFA allegedly gave ticket holders the impression that attending the World Cup does not have an impact on the environment. The claim was joined with four other complaints into one joint proceeding before the Swiss Commission on Fairness. The commission upheld all five claims in June 2023. New Weather Institute v. FIFA (Advertising Standards Authority (ASA), UK).
United Kingdom: High Court Approves Transport Action Network’s Challenge Against Government’s Funding Cut in Cycling and Walking Strategy
The Secretary of State is under a duty to set a Cycling and Walking Investment Strategy for England (Infrastructure Act 2015, section 21). The Strategy must specify objectives and the financial resources to be made available to achieve these objectives. There is also a duty to protect the “certainty and stability” of any such strategy. Pursuant to the above duty, on Jul.6, 2022, the Secretary of State published the second cycling and walking investment strategy (“CWIS2”), covering the period 2021 to 2025. It set funding for the meeting of various of its objectives. However, on Mar. 9, 2023, the government made a statement to Parliament suggesting it had cut funding for active travel, previously set under the CWIS2, by two-thirds. Despite the statutory power to vary a strategy, no such variation was made to CEIS2, despite the statement to Parliament.
Transport Action Network (“TAN”) is an NGO whose objectives include helping local authorities accelerate a modal shift to sustainable travel. TAN issued a public law challenge to the March 2023 statement. It argues that by making ad hoc announcements, ministers have tried to unlawfully bypass the framework set by Parliament. It is said that by cutting funding, there is now a stark and inevitable inconsistency between the active travel objectives and the funding to achieve them. Further, ministers appear to have failed to consider the impacts on climate and air pollution targets, together with their legal duties to make facilities more accessible for people with disabilities and cycling more inclusive for children, older people, and women. The High Court initially refused permission for the claim to proceed. However, following a permission hearing on Oct. 26, 2023, that decision was reversed, and the case will now proceed to trial, expected to occur at some point in 2024. R(Transport Action Network) v Secretary of State for Transport (Cycling and Walking Investment Strategy) (High Court of Justice, UK).
United Kingdom: Disability Rights Activist, Homeowner, and Friends of the Earth Challenge UK’s National Adaptation Programme on Legal Compliance and Human Rights Grounds
A disability rights activist, a campaigner trying to save his home and Friends of the Earth, have together brought a public law challenge to the UK’s ‘National Adaptation Programme 3’ (or ‘NAP3’). The claim focuses on legal compliance with section 58 of the Climate Change Act 2008, as well as breaches of human rights.
One co-claimant is a care home resident particularly vulnerable to overheating during seasonal heatwaves, the other is at imminent risk of losing his home and possessions to rising sea levels and coastal erosion. Between them, they allege that NAP3 is so deficient that it breaches their human rights to: life (Article 2), home (Article 8), possessions (A1P1), and that they are discriminated against on account of their vulnerable situations (Article 14). The case was filed on Oct. 17, 2023, and is believed to be the first of its kind in the UK.
The grounds are as follows.
Ground 1 – misdirection in law as to the correct approach to setting ‘objectives’ under s58(1)(a). Rather than setting lawful specific objectives the Secretary of State has included vague ‘risk reduction goals’. The claimants consider this is inconsistent with the statutory language in s58, the overall statutory scheme, and its fundamental purpose.
Ground 2 – unlawful failure to consider and/or publish information on the risk(s) to delivery of the plans and proposals in NAP3. There is no evidence this assessment was done.
Ground 3 – unlawful failure to discharge the ‘public sector equality duty’, in not lawfully considering the unequal impacts of NAP3 on protected groups in society (such as age, race or disability).
Ground 4 – breach of section 6 of the Human Rights Act 1998 due to unlawful interferences with the individual co-claimants’ rights under articles 2, 8, 14 and article 1 of protocol 1 of the European Convention on Human Rights. This is partly due to the failures in ground 1, but also separately due to the content and deficiencies in NAP3 itself.
In relation to Ground 4 the following issues are relevant to the co-claimants’ circumstances:
The well-established but urgent need for long-term policy and protected funding to enable care-homes (and similar healthcare settings) to adapt to excessive heat. It is said this remains absent in NAP3 despite the increasing frequency and severity of annual heatwaves.
There being no new policy to manage overheating risks in existing health and social care buildings, such that they are properly refurbished as soon as reasonably practicable.
A lack of commitment to provide adequate resources to support communities at imminent risk of being lost to erosion and flooding, including to the established mental health and emotional well-being impacts for those affected.
Gaps, inconsistency, and uncertainty in the potential allocation of funding provided for a range of areas, in particular for those communities that must (or are likely to have to) relocate and have their homes demolished. There being no insurance or compensation schemes available for the worst affected by coastal erosion and who lose their homes. No evidence of their being an express consideration, or reasoned analysis, of what a fair balance to strike would be between doing more to safeguard the human rights of vulnerable people and the interests of wider society. In pre-action correspondence the Secretary of State has denied any wrongdoing. The claimants now await a more considered response, following which the court must decide whether to grant permission for the case to proceed to full trial. If permission is granted for judicial review, a trial would be expected in mid to late 2024. R(Friends of the Earth Ltd, Mr Kevin Jordan and Mr Doug Paulley) v Secretary of State for Environment, Rood & Rural Affairs (challenge to the Third National Adaptation Programme) (High Court of Justice, UK).
United Kingdom: High Court Refuses ClientEarth’s Judicial Review Claim Against FCA for Approving Ithaca Energy’s Prospectus, Citing Adequate Climate Risk Disclosure
Ithaca Energy plc is one of the largest independent oil and gas producers in the UK North Sea, with assets including the Cambo and Rosebank fields. In 2022 it sought and was ultimately granted, listing on the London Stock Exchange. As part of that process, Ithaca submitted a ‘prospectus’ for approval by the Financial Conduct Authority (“FCA”), being the UK’s financial regulator. The FCA may only approve a prospectus if satisfied it meets the requirements of EU Regulation 2017/1129 (which remains UK law post-Brexit). That Regulation, aimed at investor protection, requires companies to disclose certain specific and material risks they face.
The FCA approved Ithaca’s prospectus. This resulted, in February 2023, in ClientEarth issuing a claim for judicial review. ClientEarth argues the climate risks associated with Ithaca’s business were not adequately disclosed, putting the FCA in breach of the Regulation when approving the prospectus. In particular:
• Although Ithaca’s prospectus includes a climate-related risk factor, the risks disclosed are of too general a nature to leave investors fully informed or to meet the Regulation requirements. Ithaca does not appear to explain how these risks affect its business specifically, or how significant these risks are for the company.
• The prospectus does not address the apparent conflict between Ithaca’s intention to develop new fossil fuel assets that would operate for decades and the International Energy Agency’s conclusion that no new fossil fuel infrastructure can be built if the world is to meet a 1.5 warming target.
• Ithaca fails to explain how its business model and financial prospectus would need to change, or be affected if the Paris Agreement goals are to be achieved and what impact that would have on their key assets, which include Cambo and Rosebank.
• The above information is vital to investors if they are to make an informed assessment of the company’s financial position and, therefore, should have been provided in the prospectus.
The High Court’s permission is required for the claim to proceed to trial. It has been reported that permission was refused on the basis that:
• The prospectus did address risks arising out of climate-related factors and it was not arguable that the FCA had misdirected itself in law
• Against the background of the duty to be concise, the FCA’s conclusion that the various risk factors were adequately and specifically described, having regard to the face of the prospectus itself, was not arguably in error in public law terms; and
• By law, the FCA has to be satisfied that a risk is adequately described and that the risk factors are corroborated, and therefore the FCA has a considerable margin of discretion. Coupled with the FCA’s expertise in the area, this makes the irrationality standard particularly difficult to surmount. The fact that the Paris Agreement was a risk for Ithaca’s business had been disclosed and it was open to the FCA to conclude that, in the context of the whole of the prospectus, Ithaca had provided investors with sufficient information to make an informed assessment of risk in accordance with the relevant regulations. Such a conclusion was not arguably in error in public law terms.
It has also been reported that ClientEarth has since indicated that it will apply for the decision to refuse permission to be reconsidered. ClientEarth v Financial Conduct Authority (Ithaca Energy plc listing on London Stock Exchange)(High Court of Justice, UK).
United Kingdom: High Court Rejects Residents Association’s Challenge Against Balcombe Hydrocarbon Exploration Planning Permission, Appeal Application Submitted
This public law challenge concerns the grant of planning permission for exploration and assessment of hydrocarbons at a site in Balcombe, West Sussex. The decision was made by a planning inspector on behalf of the Secretary of State. The claimant is a residents association opposed to the proposed development. In October 2023 the High Court gave judgment, dismissing the claim.
There had been no breach of the EIA regulations. First, there had been no failure to consider the ‘project’ as a whole when screening the proposal out of the EIA regime. The scheme was a single, clearly defined project limited to exploration and associated monitoring. It did not include any subsequent commercial production. Second, whilst GHG emissions were not expressly considered in the screening opinion, that was not an error of law. Whilst there would be a flare, it would have been obvious that this flare would emit GHG emissions. Further, this was a small-scale development, and the evidence overwhelmingly indicated that GHG emissions were not a significant likely effect. (Paragraphs 41 to 61.)
The claimant also argued that the inspector should have considered the assessed and quantified level of GHG that would be emitted, and he failed to do so. However, there is no requirement, whether in statute or case law, that every planning decision has to expressly refer to or quantify the GHG emissions that will result. Climate change is likely to be a material consideration in every planning decision given the policy context as well as the much wider issues, but that does not mean that every decision has to have reference to specific figures or assessments. Each case will depend on its own factual and policy context. Here the reference the inspector made to climate change was adequate in the context of this case. (Paragraphs 62 to 65.) On Oct. 31, 2023, the claimant applied to the Court of Appeal for permission to appeal the High Court’s ruling. Frack Free Balcombe Residents Association v Secretary of State for Levelling Up, Housing and Communities (High Court of Justice, UK).
United Kingdom: Friends of the Earth, ClientEarth, and Good Law Project Challenge UK Government’s Carbon Budget Delivery Plan for Alleged Breach of Climate Change Act
In June 2021 the UK’s sixth carbon budget was set, covering the period 2033 to 2037. In November 2021, the government published its strategy for meeting that and the other carbon budgets. However, that strategy was held to be in breach of the Climate Change Act 3008 - R(Friends of the Earth, ClientEarth and Good Law Project) v SSBEIS  EWHC 1841 (Admin). The court ordered the government to revise its strategy to correct the legal errors identified. That revised strategy – the Carbon Budget Delivery Plan – was published in March 2023. However, that too was challenged on public law grounds in claims brought by Friends of the Earth, ClientEarth, and the Good Law Project.
Friends of the Earth’s challenge raises grounds under both section 13 and section 14 of the Climate Change Act. Under section 13, Friends of the Earth will argue that the Secretary of State acted unlawfully by not considering delivery risk in a lawful way, and that there was no legally sufficient basis for the Secretary of State to conclude that the proposals and policies “will enable” the carbon budgets to be met. Further, Friends of the Earth will argue that the Secretary of State unlawfully failed to put forward proposals that “must” contribute to sustainable development. Under section 14, Friends of the Earth will argue that the Plan unlawfully does not include information obviously material to the critical issue of risk to the delivery of the carbon budgets.
Good Law Project’s challenge focuses on the government’s refusal to include a proper assessment of the delivery risk associated with each of the policies and proposals in its Carbon Budget Delivery Plan. Good Law Project will argue that this is unlawful because it is a breach of section 14 , which requires the Secretary of State to publish sufficient information to allow meaningful scrutiny of the government’s net zero policies.
ClientEarth’s challenge focuses on the government’s failure to have regard to considerations that are legally essential under section 13, related to the risks of its plans not delivering the emissions savings required to meet the UK’s climate targets. ClientEarth also argues that the government’s assumption that the projected emissions savings from its policies will be delivered ‘in full’ was not rational having regard to the government’s own assessment of delivery risks to key policies. The High Court will hear the three cases together over three days from 20 to 22 February 2024. R(Friends of the Earth Ltd) v Secretary of State for Energy Security and Net Zero; ClientEarth v SSESNZ; Good Law Project v SSESNZ (challenges to the Carbon Budget Delivery Plan) (High Court of Justice, UK).
United Kingdom: Global Feedback Challenges UK Government’s Food Strategy for Alleged Failure to Meet Climate Change Act Duties, Court of Appeal Reserves Judgment
In June 2022 the UK government published its Food Strategy. According to the government the strategy “will help ensure we deliver our ambition for a prosperous agri-food sector, and that healthier and more sustainable diets can be achieved by all.” The Strategy was challenged on public law grounds by Global Feedback, a campaigning organization concerned with a sustainable food system. At issue is whether the Secretary of State relied on the Food Strategy to discharge the duty under section 13 of the Climate Change Act (duty to prepare proposals and policies for meeting the UK carbon budgets).
Both the independent review of the National Food Strategy written by Henry Dimbleby and commissioned by the government in 2019 and the UK Climate Change Committee (CCC) have identified substantial reductions in meat and dairy as essential to tackling climate change. In 2020, it recommended a 20% reduction in meat and dairy consumption by 2030, and a 35% reduction for meat by 2050, as part of its Balanced Net Zero Pathway scenario. Feedback argued that the government’s failure to incorporate this advice, in particular the CCC’s recommendations, or explain why it opted to not adopt their expert recommendations was unlawful. In December 2022, the High Court refused permission for the claim to proceed to trial. However, in June 2023, the Court of Appeal reversed that decision. In October 2023, the Court of Appeal heard the claim, reserving judgment to a later date. Global Feedback Ltd v Secretary of State for Environment, Food & Rural Affairs (challenge to the Food Strategy) (Court of Appeal, UK).
United Kingdom: Global Feedback Launches Legal Challenge Against UK-Australia Free Trade Agreement for Allegedly Ignoring Environmental Impact and Climate Obligations
Global Feedback is a campaigning organization concerned with a sustainable food system. In July 2023, it brought a challenge on public law grounds against the UK government’s assessment of the environmental impacts of the UK-Australia Free Trade Agreement. The free trade deal gives Australian producers significant access to the UK market to sell meat.
The government’s impact assessment concluded it was not possible to assess the impact of carbon leakage on the basis that data on relative carbon emissions associated with cattle meat was too “variable”. Challenging this, Feedback relies on evidence that consistently shows that the emissions intensity from Australian beef is substantially higher than that from the UK.
It argues the UK government is bound by various legal and international obligations to take climate change, biodiversity, and emissions reduction into account when setting trade policies, including the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement.
Feedback also argues that the government’s impact assessment failed to quantify the carbon impact of any changes to domestic UK meat and dairy consumption because of tariff-free imports of Australian food. It is said the greater availability of cheaper meat on the UK market will increase consumption, and undermine recommendations from both the independent review of the National Food Strategy, commissioned by the government in 2019, and the UK Climate Change Committee (CCC), that substantial reductions in meat and dairy are essential to tackle climate change. Global Feedback v Secretary of State for Environment, Food and Rural Affairs (UK-Australia Free Trade Agreement) (Court of Appeal, UK).
United Kingdom: Friends of the Earth and SLACC Challenge UK Government’s Decision to Approve New Coking Coal Mine, Awaiting Supreme Court Judgment in Related Case
In January 2023, the two environmental organizations Friends of the Earth (FoE) and South Lakeland Action On Climate Change (SLACC) filed public law challenges to the UK Government’s decision to grant planning permission for a new coking coal mine in the UK. The decision to grant planning permission was made in December 2022 by the Secretary of State (SoS) for Levelling Up, Housing and Communities, on the recommendation of a planning inspector after a planning inquiry held in 2021.
FoE challenged the decision as unlawful on the following grounds:
- The SoS’ conclusion that the mine would be a “net-zero” mine for the purpose of reaching the UK’s Sixth Carbon Budget (covering the period of 2033-37, and as established under the UK’s Climate Change Act 2008) was unlawful. International carbon offset credits, which the mining company undertook to buy to offset the mine’s residual emissions, do not count towards the UK’s carbon budgets.
- The SoS’ failed to lawfully address the international impact of this decision, despite the evidence given on this issue by highly qualified people, like the former chair of the IPCC.
- The SoS erred in his approach to the extent to which the coal would “substitute” for other coal in the global market or be “additional” to it, resulting in the unlawful conclusion that there would be no net emissions increase because of the mine.
- FoE also reserved the right to argue a point on the SoS’ approach to downstream emissions, depending on the UK Supreme Court’s decision in R (Finch) v Surrey County Council & ors, which was heard in June 2023.
SLACC challenged the decision as unlawful on the following grounds:
- The SoS failed to deal with the principal issue of whether or not there would be perfect substitution, which would determine the extent of the climate impact of the mine.
- The SoS failed to deal with the principal issue of the international impact of granting planning consent.
- The SoS incorrectly determined whether downstream emissions are indirectly significant environmental effects of the mine.
- The SoS applied a different threshold to the opposing parties’ evidence and arguments at the planning inquiry, and imposed the unlawful burden on the claimant of disproving the mine company’s case.
In April 2023, the High Court initially refused both claimants permission to proceed to a full hearing. The claimants exercised their right for that decision to be reconsidered. In May 2023, in the days leading up to the permission hearing, the High Court ordered a ‘rolled-up’ hearing of the two challenges. This means the applications for permission will be considered in court, with the substantive hearing to follow immediately if permission is granted. At the rolled-up hearing, the judge will likely hear arguments on permission and the substance together and give a single judgment. A three-day hearing was then set for October 2023. However, in July 2023, the High Court vacated the October hearing and stayed the challenges pending the judgment of the Supreme Court in R(on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others (UKSC 2022/0064).
In October 2023, the High Court heard and rejected a disclosure application by Friends of the Earth. The document sought was the advice received by the SoS, from his officials, on whether to grant or refuse planning permission for the mine. It is unknown whether Friends of the Earth intends to appeal that ruling. The rolled-up hearing has not been fixed yet, given the Supreme Court has yet to give judgment on the Finch appeal. The hearing is expected to take place in 2024. Friends of the Earth v. Secretary of State for Levelling Up, Housing and Communities; and South Lakeland Action on Climate Change v. SSLUHC (Whitehaven coalmine) (High Court of Justice, UK).
Brazil: Pará State Public Defender’s Office Files Four Lawsuits Over Illegal Carbon Credit Project, Alleging Land Grabbing and Violation of Community Rights
In July 2023, the Public Defender’s Office of the State of Pará (DPE-PA) filed four Public Civil Action (ACP) with a request for injunctive relief due to a project that allegedly generates illegal carbon credits sold on the voluntary market. The four lawsuits were filed on the same grounds but challenging different carbon credit projects.
Companies and individuals are 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 enterprise and that the project does not have authorization from the state of Pará, which characterizes the grabbing of public land. In addition, the mayor of Portel issued a Public Utility Decree authorizing its operation, which the DPE-PA argues is unconstitutional. It is emphasized that the project was implemented without a prior technical study. 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, that they 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. The plaintiff argues that the defendant’s behavior 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 the project 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 the projects 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 favor of the communities of the extractivist territories of Portel. Public Defender’s Office of the State of Pará vs. RMDLT Property Group and others (Project 997 carbon credits and “forest carbon grabbing”) (Pará State Court, Brazil); Public Defender’s Office of the State of Pará vs. Brazil AGFOR LLC and others (Project 2252 carbon credits and “forest carbon grabbing”) (Pará State Court, Brazil); Public Defender’s Office of the State of Pará vs. Floyd Promoção e Representação LTDA and others (Project 981 carbon credits and “forest carbon grabbing”) (Pará State Court, Brazil); 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”) (Pará State Court, Brazil).
Brazil: MPF Files Criminal Action Against Deforestation and Forest Fire in Amazon, Sentencing Under Review
On September 29, 2016, the Federal Public Prosecutor’s Office (MPF) filed a Criminal Action (APOrd) against Mr. Rogério [last name omitted], for the alleged practice of crimes under the articles 50-A (deforesting, exploiting or degrading public forest) and 41 (causing fire in forest) of the Federal Law 9,605/98 (Environmental Crimes Law). The complaint states that between September and October 2010, the defendant allegedly deforested, with the use of fire, 111,0675 hectares of native forest of the Amazon biome in an area of Brazil’s domain without authorization from the competent environmental agency. The defendant claimed to be a farmer and to have carried out the deforestation to establish pasture for raising dairy cattle. Afterward, the defendant was judged to be in default.
The decision of the judge set the final penalty at 04 (four) years and 02 (two) months of imprisonment and 30 (thirty) days fine. It was considered that the crimes committed under articles 50-A and 41 of the Environmental Crimes Law were practiced in substantive joinder of offenses. On this occasion, the judge did not increase the base penalty of the crime provided for in art. 41 of the Environmental Crimes Law, as it was understood that the reasons that would give rise to an increase had already been considered when assessing the penalty related to article 50-A of the same law. The ruling refers to the emission of GHGs when it mentions the use of fire by the defendant for the consummation of the crime of causing a fire in a forest.
The MPF filed an appeal requesting the revision of the dosimetry of the penalty applied, pleading for the recognition of judicial circumstances that increase the penalty of the crime of forest fire. It argued that the impact of the use of fire in the Amazon on climate change should be considered since the defendant’s action was especially serious given the extent of the burned area. It mentioned the impact of the fire on human health and the livelihoods of indigenous peoples. It was questioned the feasibility of increasing the sentence in the first phase of dosimetry of the ruling due to the aggravated impact of the crime on climate change. It requested the reform of the decision to negatively value the circumstance of the consequences of the crime of article 41 of the Environmental Crimes Law. The appeal is pending judgment by the competent Court. Federal Public Prosecutor’s Office vs. Rogerio (forest fire) (Amazonas Federal Court, Brazil).
Brazil: Rede Political Party Files Legal Action Over Lack of Funds for Cerrado Deforestation Monitoring
On January 8, 2022, the Rede Sustentabilidade (Rede) political party filed an Argument for Failure to Comply with a Fundamental Precept (ADPF), with a request for an injunction, against the conduct of the Federal Government embodied in the lack of transfer of funds to the National Institute for Space Research (INPE), which makes it impossible to monitor deforestation in the Cerrado (PRODES Cerrado).
The party highlights the high percentage of deforestation in the Cerrado and the high number of fires monitored by INPE in 2021, which is occurring alongside the advance of the agricultural and livestock frontier in the biome. It highlights the importance of the Cerrado in terms of preserving biodiversity and social aspects, as indigenous populations, quilombolas, geraizeiras, ribeirinhas, babaçueiras and vazanteiras survive on the biome’s resources. It also highlights its importance for water distribution in the country, as the Cerrado is responsible for the flow of important river basins. It also points out that the biome stores 13.7 billion tons of carbon dioxide and, if it continues to be destroyed, there will be greater greenhouse gas (GHG) emissions, preventing the achievement of international climate targets set by Brazil in the Climate and Biodiversity Conventions. It claims that INPE’s monitoring of the biome is essential for the country to provide information under these agreements.
The plaintiff party argues that the federal government’s conduct violates various constitutional rights and principles and the precautionary principle. As a precautionary measure, it requests that the Federal Government prove that sufficient funds have been allocated to the PRODES Cerrado project. On a final basis, it requests a judgment upholding the action, confirming the precautionary measure, and declaring the unconstitutionality of the Federal Government’s act of making the monitoring of the Cerrado unfeasible due to the lack of transfer of funds to INPE. ADPF 934 (Transfer of funds to PRODES Cerrado) (Federal Supreme Court, Brazil).
Brazil: IBAMA Sues Company for Environmental and Climate Damages Stemming from Illegal Wood Storage
On January 28, 2019, Brazil’s Federal Environment Agency (“IBAMA”), filed a public civil action (environmental class-action) against Seringal Indústria e Comércio de Madeiras EIRELI 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 storing 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) its 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 39.412 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$ 3,827,228.38. 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 14,464.204 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 rejected the injunction, understanding that there was no urgency in the provision or danger of delay.
The defendant filed a response alleging the ineptness of the complaint, arguing that the facts had not been proven, pointing them out as mere unreasonable presumptions. It also claimed that it’s illegitimacy to be a party to the action, since there was no proof of conduct, comissive or omissive, or causal connection that linked itself to the environmental damage. Finally, it requested the termination of the case without resolution of its merits or the judgment for dismissal of the action. On August 15, there was a decision granting the plaintiffs’ requests and ordering Seringal Industria e Comércio de Madeiras EIRELI (i) to recover the degraded area described of 39.412 hectares, (ii) in the alternative, if it is impossible to recover the area at issue, to pay compensation in the amount of R$423,363.70 and (iii) to pay compensation corresponding to the social cost of carbon (SCC) in the amount of R$3,827,228.38. On August 28, the defendant company filed an appeal alleging a lack of evidence since the causal link to the damage is presumed without mentioning the date of the deforestation, which was verified using remote systems, without on-site inspection. Federal Environmental Agency (IBAMA) v. Seringal Indústria e Comércio de Madeiras EIRELI (Amazonas Federal Court, Brazil).
Italy: Survival International Files OECD Complaint Against Italian Leather Company for Deforestation Impact on Indigenous Rights
On December 13, 2022, the NGO Survival International filed a complaint with the Italian National Contact Point of the OECD (Organization for Economic Cooperation and Development), arguing that Pasubio – an Italian leather company that supplies renowned automotive firms including BMW and Land Rover – has violated the OECD Guidelines for Multinational Enterprises. Specifically, the complaint alleges that Pasubio is sourcing leather from cattle ranching firms that operate within the forests inhabited by the Ayoreo Totobiegosode in the Gran Chaco area of Paraguay. The Ayoreo Totobiegosode are the only indigenous people living in voluntary isolation in the Americas outside the Amazon rainforest. According to the applicant, the activities of the cattle farms contribute to the deforestation of the Ayoreo lands and the violation of their human rights. Although climate change is not the main issue at the center of the case, the specific instance explicitly addresses the link between deforestation activity and the climate emergency. Deforestation affects the natural GHG emissions absorption capacity, accelerating global warming. The complaint also mentions the Glasgow Forest Pledge, under which several multinational companies have pledged to reduce their deforestation impact. The allegations are based on, among other things, two reports by the NGO Earthsight. Survival International Italia (on behalf of Ayoreo Totobiegosode Indigenous People) v. Pasubio (Italian company in the leather sector)(OECD National Contact Point, Italy).
Portugal: Three NGOs Sue Portuguese State Over Alleged Failure to Meet Climate Obligations Under Climate Framework Law
On November 26, 2023, three NGOs (Associação Último Recurso, Quercus, and Sciaena) filed a complaint against the Portuguese State, pursuant to the Portuguese Class Action Statute (i.e., Law no. 83/95, of 31 August 1995). They invoke that the Portuguese State adopted in 2021 a Climate Framework Law (i.e., Law no. 98/2021, of 31 December 2021), according to which the Portuguese State, until February 1, 2023, had an obligation to adopt several measures (including to enact laws and other political acts) aimed at achieving the GHG emissions reduction goal of 55% until 2030, in comparison with the emissions values of 2005.
These measures include the adoption of the carbon budgets for 2023/2025 and 2025/2030; a report of assessment of the climate impact of the legislation in force; the regulation of the climate risk and impact of financial products; an amendment to the rules in relation to corporate governance; an amendment to the legal regime on the exploration for, and exploitation of, hydrocarbons. Moreover, the plaintiffs claim that other deadlines until the end of 2023 and early 2024 are likely to fail.
Accordingly, the plaintiffs ask the court (1) to declare that the Portuguese State has not complied with its obligations pursuant to the Portuguese Climate Framework Law, which realizes the human and fundamental rights listed in the Constitution and in the ECHR, and implements the Portuguese NDC submitted under the Paris Agreement; and (2) to condemn the State to adopt the laws and political acts necessary to comply with the Climate Framework Law. Associação Último Recurso et al. v. Portuguese State (Lisbon Civil Court, Portugal).
Switzerland: Pari Island Residents Sue Holcim for Climate Change Damages and Emissions Reductions in Swiss Court
Four inhabitants of the Indonesian island of Pari have sued Swiss-based major buildings materials company Holcim (from 2015 to 2021: Lafarge Holcim). In July 2022, they filed a request for conciliation before the Justice of the Peace of the Canton of Zug, Switzerland. This is a necessary step required by the Swiss Civil Procedure Code. The plaintiffs are supported by three NGOs: HEKS/EPER (Switzerland), the European Center for Constitutional and European Rights (ECCHR) and WALHI (Indonesia).
On February 1, 2023, following a Conciliation Hearing before the Justice of the Peace in October 2022 where no settlement was reached, the NGOs supporting the plaintiffs announced that the plaintiffs had formally lodged a lawsuit against Holcim with the Cantolnal Court of Zug (Kantonsgericht Zug). In October 2023, the Cantonal Court of Zug granted the plaintiffs’ request for free legal aid (art. 117 et seq Civil Procedure Code). According to a press release of HEKS, the judge held that the two requirements for granting free legal aid, (a) insufficient funds to pay for legal costs and (b) the legal petition does not seem to be lacking any chance of success, were met. The legal basis on which the plaintiffs rely is Article 28 of the Swiss Civil Code (infringement of personal rights) and Article 41 of the Code of Obligations (redress for unjust harm). As to Holcim’s historical emissions, the plaintiffs rely on a Study by Richard Heede/Climate Accountability Institute. Asmania et al. vs Holcim (Zug, Switzerland).