December 2024 Updates to the Climate Case Charts

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

HERE ARE THE ADDITIONS TO THE U.S. CLIMATE CASE CHART FOR UPDATE #189:

FEATURED CASE

California Federal Court Declined to Grant Plaintiffs’ Summary Judgment on First Amendment Challenge to California Climate Disclosure Laws

The federal district court for the Central District of California denied plaintiffs’ motion for summary judgment on their facial First Amendment challenge to California’s laws requiring companies to make disclosures regarding their greenhouse gas emissions and climate-related financial risk. The court concluded that additional factual development was necessary to determine whether the laws regulate commercial speech so that intermediate, rather than strict, scrutiny would apply. The court said that it would need, for example, information about whether the laws regulate “a substantial number of companies that do not make potentially misleading environmental claims” as well as information about any “real-world examples” of the laws’ overinclusiveness. The court therefore granted the defendants’ motion to deny or defer summary judgment. The court also said it would address the defendants’ motion to dismiss the extraterritorial regulation and Supremacy Clause claims in a separate decision. Chamber of Commerce of the United States of America v. California Air Resources Board, No. 2:24-cv-00801 (C.D. Cal. Nov. 5, 2024)

DECISIONS AND SETTLEMENTS

Supreme Court Announced that Justice Gorsuch Would Not Participate in Rail Line NEPA Case

The U.S. Supreme Court notified counsel for parties to a case concerning the scope of National Environmental Policy Act (NEPA) reviews that Justice Gorsuch had determined that he would not continue to participate in the case based on the Code of Conduct for Justices. Oral argument was scheduled for December 10, 2024. The Court is considering the question of whether NEPA “requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.” The D.C. Circuit Court of Appeals found that Surface Transportation Board review of an 80-mile rail line in Utah to be used to transport waxy crude oil violated NEPA, including by failing to disclose reasonably foreseeable upstream and downstream effects of increased oil drilling and refining, including greenhouse gas emissions from combustion. Seven County Infrastructure Coalition v. Eagle County, No. 23-975 (U.S. Dec. 4, 2024)

Supreme Court Denied Juliana Plaintiffs’ Mandamus Petition; Plaintiffs to File Certiorari Petition by December 9

The U.S. Supreme Court denied youth plaintiffs’ petition for writ of mandamus that requested that the Court determine whether the Ninth Circuit Court of Appeals exceeded its jurisdiction when it directed the district court to dismiss the amended complaint filed by the plaintiffs in June 2023 in their lawsuit alleging that federal defendants violated their constitutionally protected rights to a stable climate system capable of sustaining human life. The plaintiffs’ counsel said the plaintiffs would file a petition for writ of certiorari seeking review of the Ninth Circuit’s decision. The deadline for the certiorari petition is December 9, 2024. In re Juliana, No. 24-298 (U.S. Nov. 12, 2024)

Tenth Circuit Affirmed Dismissal of New Mexico Residents’ Water Rights Claims

The Tenth Circuit Court of Appeals affirmed the dismissal of a lawsuit brought by New Mexico residents who alleged that state, Tribal, and federal defendants violated federal water law in violation of the plaintiffs’ water rights. The plaintiffs’ allegations included that adjudication of water rights in interstate rivers must consider global warming. The Tenth Circuit agreed with the district court that the claims must be dismissed because sovereign immunity prevented the courts from exercising jurisdiction over the defendants. Clark v. Haaland, No. 22-2141 (10th Cir. Nov. 13, 2024)

After Completion of Transmission Line Through Wildlife Refuge, Appellate Court Dismissed Preliminary Injunction as Moot

The Seventh Circuit Court of Appeals held that appeal of preliminary injunctions halting a wildlife refuge land exchange and construction of a high-voltage transmission line through the refuge was moot after the injunction was stayed and the exchange and construction of the line were completed. The Seventh Circuit remanded the case to the district court for a determination of whether the plaintiffs’ request for a permanent injunction was also moot. The plaintiffs’ claims included that that the defendants violated the National Environmental Policy Act, including by failing to take a hard look at climate change impacts of the project. National Wildlife Refuge Association v. Rural Utilities Service, No. 24-1492 (7th Cir. Nov. 6, 2024)

Challenge to Montana Wolf Trapping Rules Dismissed After State Shortened Trapping Season

After the State of Montana adopted new wolf trapping and snaring regulations, parties to a lawsuit challenging the previous regulations agreed to the dismissal of the lawsuit. The new regulations incorporated a preliminary injunction’s temporal and geographic limitations. The court had imposed the limitations upon finding that the plaintiffs presented a “substantial body of evidence” that future unlawful takes of grizzly bears in legal wolf and coyote traps were reasonably certain under the previous regulations, including evidence regarding a trend of grizzly bears being active outside their dens during the trapping season due to a warmer winter climate. The defendants agreed to pay the plaintiffs $210,000 for attorneys’ fees, costs, and other litigation expenses. Flathead-Lolo-Bitterroot Citizen Task Force v. Montana, No. 9:23-cv-00101 (D. Mont. Nov. 21, 2024)

After Termination of Offshore Wind Project Off Coast of New Jersey, Court Dismissed Lawsuit Challenging Federal Approvals

After the developer announced its intent to cease an offshore wind farm on the Atlantic Outer Continental Shelf and New Jersey vacated orders granting easements for the project, the federal district court for the District of New Jersey dismissed as moot a lawsuit challenging federal authorizations for the wind farm. The County of Cape May and other plaintiffs had argued, among other things, that the Bureau of Ocean Energy Management failed to adequately analyze the project’s impacts on greenhouse gas emissions and climate change because the analysis “focuses on partial, project-specific climate impacts in the nearby geographic area but attempts to quantify only emissions offsets from the Project, with limited qualitative descriptions of emissions generated from construction.” The court dismissed the action without prejudice. County of Cape May v. United States, No. 1:23-cv-21201 (D.N.J. Nov. 20, 2024)

Federal Defendants Agreed to Conduct New Assessment of Middle Rio Grande Operations and Maintenance Activities on Protected Species and Habitat

The federal district court for the District of New Mexico approved a settlement agreement between WildEarth Guardians, the U.S. Fish and Wildlife Service, and the U.S. Bureau of Reclamation (Reclamation) that resolved WildEarth Guardians’ lawsuit that challenged the 2016 biological opinion regarding the effects of Reclamation’s Middle Rio Grande water operations on species protected under the Endangered Species Act and their critical habitat. The complaint’s allegations included that the biological opinion failed to consider climate change impacts and that consultation under the Endangered Species Act should be reinitiated to consider new information on climate change impacts. The settlement agreement requires that consultation be reinitiated within 30 days and that a new biological opinion be issued by October 30, 2028. The agreement also requires implementation of interim measures to protect species. The federal defendants agreed to pay WildEarth Guardians $41,000 for attorneys’ fees, costs, and expenses. WildEarth Guardians v. U.S. Fish & Wildlife Service, No. 1:22-cv-00914 (D.N.M. Nov. 19, 2024)

National Archives Climate Protesters Sentenced to Prison Terms

The federal district court for the District of Columbia sentenced two defendants who pleaded guilty to charges of destruction of government property in connection with a February 2024 climate change protest in which they dumped red powder on the U.S. Constitution’s display case at the National Archives. One defendant was sentenced to 24 months of incarceration, followed by 24 months of supervised release. The second defendant was sentenced to 18 months of incarceration, followed by 24 months supervised release. He also must serve a concurrent 90-day sentence on a count of destruction of National Gallery of Art property in connection with painting words in red paint at a memorial to Black Civil War soldiers in November 2023. Each defendant also was ordered to pay a $100 special assessment and $58,607.59 in restitution to National Archives. The second defendant also must pay a second $100 assessment and $706 in restitution to the National Gallery of Art. Both defendants were ordered to stay away from the District of Columbia and from all museums and monuments during the periods of supervised release and must perform community service that includes 20 hours of cleaning up graffiti or vandalism in a public space and 130 hours involving “constructive effort on behalf of a reputable organization involved in fighting climate change or eliminating waste.” United States v. Green, No. 1:24-cr-00062 (D.D.C. Nov. 19, 2024)

Federal Court Granted Evian Water Producer’s Reconsideration Motion and Dismissed Climate Washing Claims

The federal district court for the Southern District of New York granted a partial motion for reconsideration of its January 2024 decision allowing some climate washing claims to proceed against the producer of Evian Natural Spring bottled water. The plaintiffs alleged that they paid a premium for the water based on the misleading labeling of the product as “carbon neutral.” In its January 2024 decision, the court said it had taken the position that “carbon neutral” was “an ambiguous term that lacked precision and could plausibly mislead a reasonable consumer” and that it would be “premature at this stage to determine as a matter of law that a reasonable consumer could not be misled.” The court originally allowed Massachusetts General Laws Chapter 93A, California Consumer Legal Remedies Act (CLRA), breach of express warranty, unjust enrichment, and fraud claims to proceed. On reconsideration, the court first found under Chapter 93A that in the absence of an “industry convention or governing regulation that provides assurances to consumers about the veracity or clarity” of the “carbon neutral” label on the front of the product, a reasonable consumer would be expected to learn more about the representation and to consult additional information. The court also presumed on reconsideration that “carbon neutral” was not a “general environmental benefit claim” that the Federal Trade Commission’s Green Guides warn against and therefore found that the Green Guides did not support the conclusion that “carbon neutral” was a misleading claim. Under the CLRA, the court found that its original decision overlooked “two key decisions that would have altered its conclusion that it could not determine as a matter of law that a reasonable consumer would not be misled” by the labeling. On reconsideration, the court found that there were “context clues” on the Evian product and its packaging “that should have put Plaintiffs on notice that their interpretation of ‘carbon neutral’ was not reasonable,” including that “there is no such thing as a ‘carbon zero’ product”; that the package prominently disclosed that Evian sourced its water from the French Alps; that a “Carbon Trust” logo on the back of the product should have put a reasonable consumer on notice that the logo “meant something about the product in relation to its ‘carbon neutral’ claim”; and that there was link adjacent to the Carbon Trust logo to take consumers to an explanation of what “carbon neutral” meant. The court also dismissed the breach of express warranty claim based on its conclusion that there was no misrepresentation and the unjust enrichment claim because there was no underlying fraud, coercion, or request. In addition, the court found that the plaintiffs failed to properly plead motive for their fraud claim and instead relied only on “generalized motives of increased sales and profits.” In addition, the court found that the plaintiffs did not sufficiently plead that the defendants knowingly made misrepresentations at the point of sale in support of the fraud claim. The court dismissed the five claims without prejudice and granted the plaintiffs leave to amend, setting a deadline of December 13, 2024 for an amended complaint. Dorris v. Danone Waters of America, No. 22-cv-8717 (S.D.N.Y. Nov. 14, 2024)

Fish and Wildlife Service Agreed to New Review of Status of Freshwater Snail Allegedly Threatened by Climate Change and Other Factors

Center for Biological Diversity (CBD) reached a settlement with the U.S. Fish and Wildlife Service (FWS) pursuant to which FWS agreed to review the status of the Arkansas mudalia (a freshwater snail) by July 19, 2024 and make a finding as to whether listing the species as threatened or endangered under the Endangered Species Act is not warranted, warranted, or warranted but precluded by other pending proposals. The defendants agreed to pay CBD $30,000 in attorneys’ fees and costs. The settlement resolved a lawsuit challenging FWS’s April 2019 conclusion that listing was not warranted. CBD alleged that FWS had not rationally addressed factors expected to negatively impact the snail’s future viability, including climate change-driven drought and storms. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:24-cv-00691 (D.D.C. Nov. 14, 2024)

Federal Court Dismissed Moot Challenge to Sacramento/San Joaquin Delta Water Transfers Project, Said Climate Change Issues Raised by Plaintiffs Differed from Earlier Challenge

The federal district court for the Eastern District of California concluded that federal claims challenging a project allowing sellers upstream of the Sacramento/San Joaquin Delta (Delta) to transfer water to buyers south of the Delta from 2020 through 2024 were moot. The court previously held that review of an earlier iteration of the project did not comply with the National Environmental Policy Act, including because it failed to consider the impacts of climate change on the project, and also found violations of the Endangered Species Act and the California Quality Act (CEQA). In the challenge to the 2020–2024 program, the court agreed with the federal defendants that it could no longer grant permanent injunctive relief because the project had concluded. The court further concluded that no exceptions to mootness applied. First, the court found that there was no indication that the environmental impact statement—despite any “continued validity” as a CEQA document—would have preclusive effect on future federal action. Second, the court found that the plaintiffs failed to establish that the exception for actions capable of repetition yet evading review would apply. Although the plaintiffs argued that the defendants “repeatedly failed to adequately assess climate change impacts,” the court found that the climate change issues raised here were not the same or substantially similar to the issues raised in the earlier litigation. The plaintiffs appealed the dismissal. AquAlliance v. U.S. Bureau of Reclamation, No. 1:20-cv-00878 (E.D. Cal. Nov. 11, 2024)

Florida Federal Court Dismissed Pro Se Lawsuit Claiming Breach of Contract and Fraudulent Misrepresentation in Connection with Amazon Forest Carbon Credits Project

A federal district court in Florida dismissed a pro se plaintiff’s lawsuit claiming that the defendants breached a contract or was liable for fraudulent misrepresentation related to carbon emission certificates produced by a forestry project in the Amazon. The plaintiff alleged that the certificates were worth more than $8 million and that he had contracted with one of the defendants to provide third-party certification services in order to sell the certificates in the voluntary carbon market. The plaintiff alleged that the other defendants subsequently acquired assets of that defendant. A federal court in Massachusetts previously dismissed a lawsuit brought by the plaintiff for lack of personal jurisdiction and failure of service of process. The Florida federal court agreed with a magistrate judge that the plaintiff failed to adequately allege diversity jurisdiction. The court dismissed the action without prejudice. Aldabe v. Aster Global Environmental Solutions, Inc., No. 3:22-cv-00326 (M.D. Fla. Nov. 4, 2024)

California Appellate Court Said CEQA Challenge to Santa Clarita Valley Residential Project Could Proceed

The California Court of Appeal reinstated a California Environmental Quality Act (CEQA) cause of action against the County of Los Angeles in connection with County approvals in 2022 for a proposed residential housing development in an unincorporated area of the Santa Clarita Valley. The project would include 37 single-family homes, six public facilities, and two open spaces on approximately 94 acres. The plaintiffs’ CEQA claim included allegations that the County failed to adequately analyze and disclose the project’s environmental impacts, including greenhouse gas emissions. The appellate court concluded that the trial court had erred by dismissing the entire CEQA cause of action based on the petitioners’ failure to serve a summons as required by the Subdivision Map Act. Santa Clarita Organization for Planning the Environment v. County of Los Angeles, No. B331779 (Cal. Ct. App. Oct. 21, 2024), reversing, No. 22STCP01433 (Cal. Super. Ct.)

New Jersey Appellate Court Found No Right to “Stable Environment” in State Constitution, Rejected Challenges to State Pension Fund Investments in Oil and Gas Companies

In a lawsuit alleging that the New Jersey Pension Fund’s investments in oil and gas companies violated the plaintiffs’ right to a stable environment under the New Jersey Constitution, the New Jersey Appellate Division affirmed a trial court order denying their motion to amend their complaint under the New Jersey Civil Rights Act (NJCRA) to add a substantive due process claim. The original complaint alleged that the State violated the public trust doctrine by investing in companies that the State had alleged were engaged in destruction of public assets in the New Jersey attorney general’s climate change lawsuit against fossil fuel companies. The plaintiffs also asserted breach of duty to pension beneficiaries. In a nonprecedential opinion, the appellate court concluded that denial of the motion to amend was proper because amendment would have been a “fruitless endeavor.” The court stated that “relying on the Public Trust Doctrine to find a fundamental substantive due process right to a stable environment takes us far afield from our historic applications of the Public Trust Doctrine so far,” which included disputes over access to and ownership and regulation of natural resources such as the shoreline. The court further found that even if the public trust doctrine related to harm and danger to natural resources, a fundamental right to “a stable environment” was “far broader than the right to prevent public-trust assets from environmental harm” and could not serve as a basis for a NJCRA claim. The appellate court also found that the pension statutes did not provide a basis for finding a fundamental right to a stable climate. In addition, the court declined to remand the proceeding for review of whether the pension fund’s investments in oil and gas companies were arbitrary and capricious in light of State policies on climate change. The court concluded that discretionary investments by the Director of the Division of Investments were nonjusticiable political questions. Dawson v. Murphy, No. A-3083-22 (N.J. App. Div. Oct. 29, 2024)

Virginia Trial Court Said State Respondents Lacked Authority to Repeal RGGI Regulation

A Virginia Circuit Court nullified the Virginia State Air Pollution Control Board’s repeal of a regulation that implemented Virginia’s participation in the Regional Greenhouse Gas Initiative (RGGI), a regional cap-and-trade program to reduce carbon dioxide emissions from the power sector. A 2020 law required Virginia to participate in a market-based trading program consistent with RGGI and directed the Department of Environmental Quality to incorporate the 2020 law’s provisions into a regulation to bring Virginia into RGGI. The court found that an association of weatherization professionals had standing to challenge the repeal because the association’s members would be injured by being deprived of funding through a Weatherization Deferral Repair program funded by RGGI revenues, an injury that was fairly traceable to the repeal and redressable by the court. On the merits, the court ruled that neither the 2020 law nor any other law gave the respondents authority to repeal the regulation. Association of Energy Conservation Professionals v. Virginia State Air Pollution Control Board, No. CL23000173-00 (Va. Cir. Ct. Nov. 20, 2024)

New York Court Said Transfer of Interest in Power Plant Owner to Cryptocurrency Company Required Consideration of Consistency with Greenhouse Gas Emissions Reduction Mandates

A New York trial court held that New York’s Climate Leadership and Community Protection Act (CLCPA) required the New York State Public Service Commission (PSC) to consider whether a proposed transfer of a membership interest in the owner of an upstate gas power plant to a cryptocurrency company would be inconsistent or interfere with the attainment of the statewide greenhouse gas emissions limits. The court concluded that the PSC’s consent to the transfer was a “permit[], license[], [or] other administrative approval[] [or] decision[]” within the meaning of the CLCPA Section 7(2), the provision that requires consideration of consistency with greenhouse gas emission reduction limits. Although the transfer had been completed and construction and improvements had taken place at the facility that would be costly to unwind, the trial court indicated the case was not necessarily moot and directed that the PSC should consider the issue of remedy if it determined the sale of the ownership interest was inconsistent or would interfere with the CLCPA emissions mandates. The court dismissed a claim that the PSC failed to consider the sale’s impact on “disadvantaged communities” pursuant to CLCPA Section 7(3) because the criteria for and list of disadvantaged communities were not finalized until after the PSC’s action. Clean Air Coalition of Western New York, Inc. v. New York State Public Service Commission, Nos. 900457-23/910162-23 (N.Y. Sup. Ct. Nov. 14, 2024)

New York Court Annulled Climate Law-Based Denial of Air Permit for Power Plant Used for Cryptocurrency Mining

A New York trial court vacated the New York State Department of Environmental Conservation’s (DEC’s) denial of an application to renew an air permit for a power plant used for behind-the-meter cryptocurrency mining. DEC’s final denial concluded that the facility’s operation would be inconsistent or interfere with attainment of Climate Leadership and Community Protection Act (CLCPA) statewide greenhouse gas emissions limits. The court found that DEC had authority under New York’s Uniform Procedure Act to deny applications for inconsistency with the CLCPA’s standards but that DEC’s denial in this case was arbitrary and capricious and affected by an error of law because the agency stopped its analysis at a finding of inconsistency with the emissions limits and did not assess the justification for the project. The court therefore annulled the final denial and remitted to DEC. The court rejected, however, the applicant’s contention that DEC had engaged in improper policymaking by deciding “behind closed doors” that electricity use for cryptocurrency mining was not desirable. The court also upheld DEC’s determination that granting the renewal application would be inconsistent with attainment of the greenhouse gas emissions limits. In addition, the court found that the applicant did not exhaust its administrative remedies for a Supremacy Clause argument that federal regulation superseded CLCPA obligations. Greenidge Generation LLC v. New York State Department of Environmental Conservation, No. 2024-5221 (N.Y. Sup. Ct. Nov. 14, 2024)

New York Court Rejected Climate Law as Basis for Preliminary Relief Blocking Buffalo Highway Replacement Project but Granted Injunction Based on Likelihood of Success on SEQRA Claims

In a proceeding challenging compliance with the New York State Environmental Quality Review Act (SEQRA), a New York Supreme Court granted a motion for a preliminary injunction to block a project to re-establish a parkway to replace the existing Kensington Expressway in the City of Buffalo. The court, however, denied two other preliminary injunction motions in proceedings seeking to block the project based on alleged violations of New York’s public trust doctrine, the New York Climate Leadership and Community Protection Act (CLCPA), and the New York Constitution’s Green Amendment. First, the court found that petitioners were unlikely to prevail on their claim that the former parkway (the Humboldt Parkway) was dedicated parkland and that the respondents violated the public trust doctrine when they replaced it with the Kensington Expressway. The court agreed with the respondents that the Humboldt Parkway was a road, not parkland. Second, the court found that petitioners were unlikely to succeed on their claims that the respondents ignored the adverse impacts of greenhouse gas emissions and violated the CLCPA by failing to make necessary vehicles-miles-traveled reductions and to prioritize reductions of greenhouse gas emissions in disadvantaged communities. The court said the petitioners presented “no proof” to contradict the respondents’ conclusions regarding greenhouse gas emissions. The court also said it was “unreasonable” to expect the project to “revamp a portion of a highway with the goal of recreating a parkway that will reconnect two communities without at least a short-term impact on the environment” and said it was “pure fantasy” to expect “a complete reduction of greenhouse gas emissions.” Third, the court concluded that the New York Constitution’s Green Amendment was not intended to apply retroactively to actions such as construction of the expressway and, moreover, that the petitioners’ allegations regarding how the construction and maintenance of the expressway violated the Green Amendment lacked specificity. Under SEQRA, the court concluded that petitioners demonstrated a likelihood of success on the merits of their claim that an environmental impact statement (EIS) should have been prepared. The court said it was “troubled” by the respondents’ issuance of a negative declaration for the project. The court questioned whether the project’s traffic disruption could be classified as temporary and said that little information had been provided about construction noise and vibration impacts. The court also found that the petitioners demonstrated irreparable harm if construction began without preparation of an EIS and that the balance of the equities favored the plaintiffs. The court ordered the petitioners to post an undertaking of $100,000 within 90 days. Western New York Youth Climate Council v. New York State Department of Transportation, No. 808662/2024 (N.Y. Sup. Ct. Nov. 15, 2024)

New York Court Dismissed American Petroleum Institute from New York City’s Climate Change Consumer Protection Case

A New York trial court dismissed New York City’s claim that American Petroleum Institute (API) engaged in deceptive trade practices in violation of New York City’s Consumer Protection Law. First, the court found that personal jurisdiction was not established because API did not acquiesce to general jurisdiction by registering to do business in New York and because the City did not allege that API’s alleged false and misleading greenwashing statements were targeted at New York State. Second, the court found that New York City did not sufficiently plead that API’s statements were “in connection with the sale or purchase of fossil fuel products” as required for liability under the Consumer Protection Law. The court rejected, however, API’s argument that New York’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law barred the City’s claim. The court said it was “hard-pressed to find that the New York State Legislature intended for the anti-SLAPP law to apply to New York governmental agencies that are empowered to work on behalf of the citizens of New York.” The court also was persuaded that there was a presumption in New York law against allowing general statutory language to bind the State and its political subdivisions. City of New York v. Exxon Mobil Corp., No. 451071/2021 (N.Y. Sup. Ct. Nov. 6, 2024)

Wyoming Supreme Court Affirmed Decision to Keep Individual Defendants in Carbon Credit Investor’s Lawsuit

The Wyoming Supreme Court affirmed a district court decision declining to dismiss three individual defendants from litigation concerning alleged misrepresentations regarding a carbon credits venture. The plaintiff provided funds for “a speculative business venture to monetize Brazilian carbon credits owned by some of the corporate defendants.” Against the corporate defendants and two individual defendants who were alleged to be principal actors and shareholders, officers, and board members of the corporate entities, the plaintiff asserted claims of breach of contract, breach of fiduciary duty, breach of the covenant of good faith and fair dealing, fraud, constructive fraud, negligent misrepresentation, conversion, violation of the Wyoming Securities Act, unjust enrichment, and civil conspiracy. Only fraud, constructive fraud, and negligent misrepresentation claims were asserted against the three individuals who sought dismissal based on affidavits of non-involvement. The court found no error in the court’s ruling that the three individuals were not entitled to dismissal. The Supreme Court noted that the record was limited but that the individuals had admitted to being listed as officers and to having discussions with the other individual defendants. In addition, affidavits included some information regarding their involvement in conversations regarding efforts to monetize the carbon credits. Wearmouth v. Four Thirteen, LLC, Nos. S-24-0008, S-24-0009 (Wyo. Nov. 8, 2024)

Landowners Settled Well Plugging Lawsuit

The federal district court for the Northern District of West Virginia granted preliminary approval of a settlement in a class action brought by landowners against companies that allegedly failed to plug and remediate inactive wells on the plaintiffs’ property. The plaintiffs made fraudulent transfer and trespass and negligence claims. The fraudulent transfer claims alleged that one set of defendants transferred thousands of wells to a second set of defendants for more than $600 million and that the liabilities for plugging and decommissioning the wells was $2–3 billion, rendering the acquirer insolvent. The plaintiffs’ original complaint included allegations regarding methane leaks from the wells contributing to climate change and also included a nuisance claim, but damages for methane leakage and for nuisance were subsequently disclaimed. The settlement requires the company that acquired the wells to plug 2,600 wells in six states. The settlement also requires the defendants to pay up to $6.5 million to be used for costs of notice, service awards, and any awarded attorneys’ fees and costs. McEvoy v. Diversified Energy Co., No. 5:22-cv-00171 (N.D. W. Va. Nov. 6, 2024)

NEW CASES, MOTIONS, AND OTHER FILINGS

North Carolina Town Filed Climate Lawsuit Against Duke Energy

The Town of Carrboro filed a lawsuit seeking to hold Duke Energy Corporation liable for climate change-related damages that the Town alleged were caused by Duke Energy’s “knowing deception campaign concerning the causes and dangers posed by the climate crisis.” The Town alleged that Duke Energy—which the Town alleged owned, operated, and controlled numerous electric utilities that relied heavily on fossil fuels as well as numerous natural gas companies— had “understood the dangers of climate change for decades” and was among the largest emitters of greenhouse gases in the U.S. The complaint alleged that Duke Energy participated in a “decades-long campaign” to deceive policymakers and the public about the risks of climate change and also engaged in “widespread ‘greenwashing’ to suggest to the public that it is committed to clean energy and addressing the climate crisis.” The Town contended that these actions “delayed the critical transition away from fossil fuels and thereby materially worsened the climate crisis.” The Town alleged that it has taken actions to mitigate its contribution to climate change and that it was incurring and would continue to incur millions of dollars in damages, including impacts to roads from increasing temperatures and precipitation rates, stormwater system impacts due to more frequent heavy rainfall events, higher electricity costs due to increasing temperatures, and “recurring invasions and interferences” such as extreme temperatures, riverine and urban flooding, hurricanes, and more frequent and intense extreme precipitation. The Town asserted claims of public nuisance, private nuisance, trespass, negligence, and gross negligence and sought damages, pre-judgment and post-judgment interest, and costs and expenses, including attorneys’ fees. Town of Carrboro v. Duke Energy Corp., No. 24CV003385-670 (N.C. Super. Ct., filed Dec. 4, 2024)

Maine Filed Climate Change Lawsuit Against Fossil Fuel Industry Defendants

The State of Maine filed a lawsuit in state court against major fossil fuel companies and American Petroleum Institute seeking to hold them liable for “devastating climate change impacts” that the State alleged were caused by the defendants’ “successful climate deception campaign.” The complaint alleged that the fossil fuel companies’ products contributed substantially to demand for fossil fuels and increase of carbon dioxide concentrations in the atmosphere, leading to climate change and physical, environmental, and socioeconomic impacts, including in Maine. The complaint alleged that injuries suffered by Maine included sea level rise, storm surge, extreme high tides and attendant flooding, warming and acidification of Gulf of Maine waters, more frequent and intense precipitation events and flooding, more “dangerously hot days,” increased transmission of vector-borne diseases, and reduced air quality, as well as economic threats to industries such as fishing, aquaculture, forestry, and tourism. Maine asserted causes of action for negligence, public nuisance, private nuisance, common law trespass, civil aiding and abetting, statutory nuisance, violation of the Maine Unfair Trade Practices Act, and strict liability for failure to warn under 14 M.R.S. § 221. The State requested compensatory and punitive damages; any other damages as permitted by law; civil penalties under the Unfair Trade Practices Act; disgorgement of profits; equitable relief, including abatement of the nuisance (such as through creation of a fund to pay for adaptation, mitigation, and resilience measures); other declaratory and injunctive relief; and costs, including attorney fees, courts costs, and other litigation expenses. State v. BP p.l.c., No. _ (Me. Super. Ct., filed Nov. 26, 2024)

Nebraska and Trade Associations Alleged that Semi-truck Manufacturers Colluded to Phase Out Internal Combustion Engine Vehicles

The State of Nebraska and two trade associations sued major manufacturers of internal combustion engine (ICE) Class 8 vehicles such as semi-trucks and their trade association for allegedly engaging in anticompetitive actions to phase out medium- and heavy-duty ICE vehicles. The plaintiffs alleged that the conspiracy was memorialized in a 2023 Clean Truck Partnership (CTP) agreement between original equipment manufacturers such as the defendants and the California Air Resources Board (CARB). The plaintiffs alleged that the CTP agreement is “nakedly anti-competitive” and represents “an industrywide commitment by companies to reduce their output of ICE vehicles and eliminate consumer choice, which will drive up prices for those same vehicles in Nebraska and elsewhere to subsidize the so-called ‘transition’ to [zero emission vehicles].” The plaintiffs alleged that the CTP agreement would require original equipment manufacturers to comply with CARB regulations such as the Advanced Clean Trucks and Advanced Clean Fleets rules even if the regulations were found to be unlawful and even outside California. The complaint asserted violations of the Nebraska Consumer Protection Act and the Nebraska Unlawful Restraint of Trade Act (Junkin Act). They sought declaratory and injunctive relief to bar the defendants from reducing output of or raising prices of Class 8 ICE vehicles, and from coordinating activity or taking action pursuant to the CTP agreement. Nebraska v. Daimler Truck North America, No. _ (Neb. Dist. Ct., filed Nov. 19, 2024)

Lawsuit Alleged that Federal Law Preempted South Coast Air Quality Management District’s Zero-Emissions Limits for Appliances

A lawsuit filed in the federal district court for the Central District of California sought to enjoin a South Coast Air Quality Management District (SCAQMD) rule that phased in zero-emission limits for nitrogen oxides (NOx) from certain water heaters, boilers, and process heaters. The plaintiffs—which included manufacturers of natural gas appliances; building, manufacturing, real estate, lodging, and restaurant industry groups; and a labor organization—asserted that the federal Energy Policy and Conservation Act preempted the rule and asked the court to enjoin the defendant from enforcing or attempting to enforce the rule’s emissions limits. The California Air Resources board identified zero-emission standards for appliances as a component of the 2022 Scoping Plan for Achieving Carbon Neutrality and mentioned SCAQMD’s proposal for zero-emission NOx limits for space and water heating. Rinnai America Corp. v. South Coast Air Quality Management District, No. 2:24-cv-10482 (C.D. Cal., filed Dec. 5, 2024)

Texas and 10 Other States Filed Suit Alleging that Institutional Investors Colluded to Reduce Coal Output

Eleven states, led by Texas, filed a lawsuit in the federal district court for the Eastern District of Texas asserting that three institutional investors had violated antitrust laws by collectively using their shareholdings in domestic coal producers to reduce coal output. The complaint alleged that the investment managers used their collective power, including through proxy voting, to pressure the coal producers. The complaint also cited the defendants’ participation in initiatives such as the Net Zero Asset Managers Initiative and Climate Action 100+ as “substantial evidence of a horizontal agreement” to use common ownership to set and enforce output restrictions. The states contended that the defendants’ concerns regarding climate change did not allow them “to turn a blind eye to an illegal deal.” The complaint further alleged that one of the defendants, Blackrock, Inc., had actively deceived shareholders by representing that its non-ESG funds “would be dedicated solely to enhancing shareholder value” while in fact using all of its holdings to advance its climate goals. The complaint asserted that the defendants violated Section 7 of the Clayton Act and Section 1 of the Sherman Act. The complaint also asserted violations of state antitrust laws in Texas, Montana, and West Virginia. Texas asserted a deceptive trade practice claim against defendant BlackRock, Inc. Relief sought included declaratory relief, damages, injunctive relief (including divestiture to restrain the defendants from using their stock to restrain output and limit competition), and civil fines or penalties. Texas v. BlackRock, Inc., No. 6:24-cv-00437 (E.D. Tex., filed Nov. 27, 2024)

Center for Biological Diversity Sought to Compel Findings on Listing Petitions for Climate Change-Threatened Species

Center for Biological Diversity (CBD) filed a lawsuit in the federal district court for the District of Arizona to compel the U.S. Fish and Wildlife Service to issue a 12-month findings in response to CBD’s 2022 petitions to list the southern bog turtle distinct population segment (DPS) and the roughhead shiner under the Endangered Species Act. Regarding the roughhead shiner (a small minnow that lives only in the James River watershed in Virginia), CBD alleged that the primary extinction threat was displacement by a non-native shiner species but that the roughhead shiner was also threatened by climate change altering its freshwater habitat due to extreme heat, flooding, and heavy rainfall events. The Fish and Wildlife Service also identified climate change as a threat to the southern bog turtle DPS. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 4:24-cv-00564 (D. Ariz., filed Nov. 25, 2024)

Environmental Organizations Challenged Timber Sale in BLM-Managed Area of Oregon

Three environmental organizations filed a lawsuit in federal district court in Oregon challenging the U.S. Bureau of Land Management’s (BLM’s) approval of the Last Chance Forest Management Project and the associated environmental assessment and finding of no significant impact under the National Environmental Policy Act (NEPA). The plaintiffs alleged that in authorizing the project, which included a timber sale, BLM violated the Federal Land Policy and Management Act because the project was inconsistent with the applicable Resource Management Plan. They also alleged that BLM violated NEPA by failing to take a hard look at and disclose the project’s impacts, including impacts on carbon storage. Klamath-Siskiyou Wildlands Center v. U.S. Bureau of Land Management, No. 1:24-cv-01930 (D. Or., filed Nov. 19, 2024)

Developer Sought to Block Iowa County Regulations for Carbon Dioxide Pipelines

In a lawsuit filed in the federal district court for the Northern District of Iowa, the developer of a carbon dioxide pipeline challenged local regulations of carbon dioxide pipelines passed by Bremer County in Iowa. The developer alleged that the County’s regulations were similar and in some instances identical to regulations that the Southern District of Iowa had ruled in two cases were preempted under federal and state law. The complaint also cited Eighth Circuit Court of Appeals and Iowa Supreme Court precedents. The developer asked the court to declare that the federal Pipeline Safety Act and Iowa state law preempted the local regulations and to enjoin the local regulations’ enforcement or implementation. Summit Carbon Solutions, LLC v. Bremer County, No. 2:24-cv-1036 (N.D. Iowa, filed Nov. 13, 2024)

Lawsuit in Massachusetts Federal Court Said Leaking Gas Pipeline System Violated Federal and State Laws

Conservation Law Foundation, two other organizations, and individual plaintiffs filed a lawsuit in federal district court in the District of Massachusetts against National Grid USA and two related entities alleging that their pipeline system “leaks methane chronically and persistently” and harmed communities in the City of Chelsea and the City of Boston. The complaint alleged that the harms of gas leaks included risks of explosions and fires and poisoning of trees leading to exacerbation of the heat island effect and heat-related illnesses. The plaintiffs also alleged that methane was a potent greenhouse gas that was responsible for about 30% of the rise in global temperatures since the Industrial Revolution. The plaintiffs asserted that defendants violated the Resource Conservation and Recovery Act, the Pipeline Safety Act, the Massachusetts Public Shade Tree Law, and the Massachusetts Environmental Citizen Suit Statute, and also sought to hold the defendants liable for negligence and creation of public nuisances (damage and death of public shade trees and imminent explosion and fire risks). The plaintiffs sought damages, injunctive relief, declaratory relief, civil penalties, and reasonable litigation costs. Conservation Law Foundation, Inc. v. National Grid USA, No. 1:24-cv-12830 (D. Mass., filed Nov. 12, 2024)

Conservation Groups Said Fish and Wildlife Service Failed to Make Timely Findings on Listings of Cactus and Freshwater Fish

Center for Biological Diversity and WildEarth Guardians filed a lawsuit in the federal district court for the District of Arizona challenging the U.S. Fish and Wildlife Service’s alleged failure to issue timely 12-month findings on petitions to list the Clover’s cactus and the Rio Grande shiner under the Endangered Species Act. The petitions were filed in 2020. The complaint alleged that the Clover’s cactus (a flowering succulent found only in three counties in New Mexico) was threatened by oil and gas exploration and development and also by the effects of climate change and illegal cactus collecting. The complaint alleged that the Rio Grande shiner (a small freshwater fish endemic to the Rio Grande basin) faced threats from the decline of the health of the Rio Grande and Pecos River systems, as well as from drought, which was increasing due to climate change. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 4:24-cv-00534 (D. Ariz., filed Oct. 31, 2024)

CEQA Challenge to Data Center/Warehouse Project Alleged Failure to Address Climate Change Impacts

Center for Biological Diversity (CBD) filed a California Environmental Quality Act (CEQA) challenge to the City of Pittsburg’s approval of development plan for a 76.38-acre site. The three-phase project would include a data center and two warehouses. CBD alleged that the environmental impact report (EIR) failed to disclose or adequately analyze impacts, including greenhouse gas emissions, and to identify and adopt feasible mitigation measures and to consider reasonable alternatives. Regarding greenhouse gas emissions, CBD alleged that the EIR failed to include and fully analyze all of the project’s greenhouse gas emissions and to incorporate all feasible mitigation and avoidance measures, and also used an inappropriate significance threshold. Other alleged climate change-related deficiencies included failure to consider climate change impacts on water supply. Center for Biological Diversity v. City of Pittsburg, No. _ (Cal. Super. Ct., filed Dec. 2, 2024)

Lawsuit Challenged CEQA Review for Carbon Capture and Storage Project

A lawsuit filed in California Superior Court challenged the decision by the Kern County Board of Supervisors to approve TerraVault I, a carbon capture and storage (CCS) project that proposes “to capture millions of tons of carbon dioxide … over 26 years for storage underneath the 110-year-old Elk Hills oil field.” The petitioners alleged that “[b]y extending the life of the Elk Hills oil field years longer than necessary and incentivizing a massive build-out of new industrial facilities in the County, TerraVault I flies in the face of the core purpose and objective of CCS projects—to meaningfully reduce greenhouse gas emissions from industrial activity like fossil fuel development in order to reverse the climate crisis.” The petition alleged that the final environmental impact report prepared under the California Environmental Quality Act (CEQA) failed to adequately analyze and mitigate the project’s significant and unavoidable impacts, including greenhouse gas emissions and energy use, or to analyze reasonable alternatives. The petitioners contended that the County failed to analyze the project’s potential carbon sources as part of the project’s impacts, and also that the County’s analysis revealed that the project could not ensure permanent underground storage of carbon dioxide in perpetuity. Committee for a Better Shafter v. County of Kern, No. BCV-24-104003 (Cal. Super. Ct., filed Nov. 20, 2024)

Lawsuit Said Beverage Companies Created Plastic Pollution Nuisance and Misrepresented Single-Use Plastic’s Recyclability and Environmental Impacts

Los Angeles County Counsel Dawyn R. Harrison filed an action against PepsiCo, Inc., The Coca-Cola Company, and companies that manufactured and distributed Pepsi and Coca-Cola beverages. The suit alleged, on behalf of the People of the State of California, that the defendants generated harmful plastic pollution and waste that created a nuisance. The People also asserted that the defendants violated the California Unfair Competition Law by making deceptive representations regarding single-use plastic and chemical recycling, by failing to disclose the presence of microplastics in their products and the risks of microplastics, and by creating a public nuisance. In addition, the complaint asserted a violation of the California False Advertising Law. The suit seeks declaratory and injunctive relief, abatement of the public nuisance, restitution, civil penalties, and attorneys’ fees and costs. Plastic pollution harms alleged in the complaint including climate change-related harms, including that plastic pollution diminishes the capacity of ecosystems to adapt to climate change and that some plastic resins release greenhouse gases as they break down in the environment. In addition, the complaint alleged that recycling was incapable of eliminating plastic production’s impacts, including greenhouse gas emissions, and that “advanced recycling” has higher greenhouse gas emissions than traditional, mechanical recycling. People v. PepsiCo, Inc., No. 24STCV28450 (Cal. Super. Ct., filed Oct. 30, 2024)

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HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

FEATURED CASE

European Union: Complaints Filed to European Commission Seeking Initiation of Infringements Proceedings Against France, Germany, Ireland, Italy and Sweden for Alleged Violations of National Energy and Climate Plans Obligations

On November 7, 2024, a coalition of European non-governmental organizations (NGOs) formally submitted coordinated complaints to the European Commission,* seeking the initiation of infringement proceedings against France, Germany, Ireland, Italy, and Sweden for alleged violations of their legal obligations under European Union (EU) law concerning their National Energy and Climate Plans (NECPs).

These complaints are supported by evidence demonstrating that the NECPs of the aforementioned Member States are insufficient and fail to comply with the EU’s binding climate and energy targets. The NGOs contend that these plans lack adequate and effective measures to transform the stated commitments into tangible outcomes and fail to incorporate meaningful public participation in the development of socially equitable policies. Despite the deadline for submission of NECPs having passed on June 30, 2024, only 14 Member States have complied, and the coalition asserts that these delays and deficiencies undermine the EU’s overarching climate objectives and the principle of a just transition for its citizens.

The complaint against France, submitted by the organization Notre Affaire à Tous (NAAF), alleges extensive non-compliance with EU climate and energy law. Specifically, NAAF highlights that France’s transition measures are inequitable, jeopardizing their implementation and public acceptance. While France has committed to a gross reduction of emissions by 50% by 2030, compared to 1990 levels, this pledge is contradicted by an “apparent disregard” for its net emissions obligations, which include the role of carbon sinks. According to NAAF, France’s NECP effectively acknowledges a collapse in its natural carbon sinks, with the absorption of CO2 by these sinks projected to decline from an earlier target of -42 MtCO2eq to -8 MtCO2eq for the 2024–2028 carbon budget, far below the EU-mandated minimum of -31 MtCO2eq. This significant reduction would result in a net increase in emissions during this period, in direct contravention of EU requirements.

Furthermore, NAAF asserts that critical sectors such as transport and buildings, which are central to France’s National Low Carbon Strategy (Stratégie Nationale Bas Carbone, or SNBC), have suffered from severe policy regressions and financial cutbacks. Examples include reductions in funding for the “Ma Prime Rénov” renovation grant and the national cycling plan. NAAF also points to delays in renewable energy projects, which jeopardize France’s commitment to achieving 45% renewable energy in final energy consumption by 2030. The organization concludes that the abandonment, postponement, or rollback of numerous measures within the NECP raises serious concerns regarding the credibility of the plan and France’s capacity to meet its stated goals.

NAAF further contends that France’s approach to public consultation undermines the legitimacy of its NECP. Although France submitted its NECP months ago, it is still conducting public consultations on related climate planning documents, such as SNBC 3 and the Multiannual Energy Plan (Programmation Pluriannuelle de l’Énergie, or PPE). However, certain elements currently under consultation have already been incorporated as binding commitments in the NECP. NAAF argues that this process casts doubt on the authenticity of the government’s intent to genuinely consider public and stakeholder input. NAAF emphasizes that robust and inclusive consultation processes are essential, particularly given the socially unjust decisions codified in the NECP. For instance, France has effectively abandoned a meaningful fight against energy poverty: the NECP sets a modest target to reduce the percentage of households experiencing energy poverty by just 0.5% by 2030, from 11.6% in 2022 to 11.1%, despite these households being increasingly vulnerable to climate and energy-related challenges.

*Pursuant to EU law, the European Commission is mandated to ensure that Member States fulfill their legal obligations. Should the Commission determine that a Member State is in breach, it may initiate formal infringement proceedings to bring national legislation and practices into compliance with EU law. The Commission has 12 months to respond to these complaints. Notre Affaire à Tous v. France (European Union, European Commission)

DECISIONS & SETTLEMENTS

Brazil: Civil Public Action Against Individual for Unlawful Deforestation

On September 9, 2021, the Federal Public Prosecutor’s Office (MPF) filed a Civil Public Action (CPA) against José Barbosa de Araújo for deforesting an area of 127.56 hectares, between 2011 and 2020, in Boca do Acre, Amazonas. The MPF alleges that the defendant’s occupation of the land was illegal because it was part of an Agro-Extractivist Settlement Project (PAE), owned and managed by the National Institute for Colonization and Agrarian Reform (INCRA) and occupied by traditional extractivist communities. This ACP is part of a set of 22 lawsuits filed by the MPF as a result of the investigation carried out in Civil Inquiry No. 1.13.000.001719/2015-49 into illegal deforestation carried out inside the Antimary Agro-Extractivist Settlement Project (PAE), but against different defendants.

The lawsuit is based, among other things, on Brazilian environmental law, concerning the constitutional protection of the environment, the accusation of deforestation, propter rem civil liability for environmental damage, including climate damage, and collective moral damages. It also mentions the unauthorized emissions of Greenhouse Gases (GHG) caused by the illegal deforestation of the area, calculated at 76,359.16 tons of carbon dioxide and which are directly related to the Brazilian State’s departure from its climate goals, out of step with national and international commitments made by Brazil in the National Policy on Climate Change - PNMC (Federal Law 12.187/2009) and in the Paris Agreement (promulgated by Federal Decree 9.073/2017). Among other requests: (i) reparation for the damage caused by illegal deforestation; (ii) payment of compensation corresponding to intermediate and residual material environmental damage; (iv) payment of compensation corresponding to climate damage; and (v) payment of compensation corresponding to collective moral damage. Federal Public Prosecutor’s Office v. José Barbosa de Araújo (Deforestation and climate damage in the PAE Antimary) (Brazil, Amazonas Federal Court)

Brazil: Public Civil Action Against 2 Individuals for Unlawful Deforestation

On May 21, 2024, the Federal Public Prosecutor’s Office (MPF) filed a Public Civil Action (CPA) against Gilvan Onofre Souza and José Milton Onofre dos Santos for deforesting an area of 1,849.60 hectares between 2017 and 2018, in Boca do Acre, Amazonas. The MPF alleges that the defendants’ occupation of the land was illegal because it was part of an Agro-Extractivist Settlement Project (PAE), owned and managed by the National Institute for Colonization and Agrarian Reform (INCRA) and occupied by traditional extractivist communities. This ACP was filed following a set of 22 lawsuits filed by the MPF as a result of the investigation carried out in Civil Inquiry No. 1.13.000.001719/2015-49 into illegal deforestation carried out inside the Antimary Agro-Extractivist Settlement Project (PAE), and is the result of the same CI. The lawsuit was filed following the termination without resolution of the merits of case 1022785-39.2021.4.01.3200, based on the identification of the individuals who had in fact deforested the same area that was the subject of the lawsuits. The lawsuit is based, among other things, on Brazilian environmental law, concerning the constitutional protection of the environment, the accusation of deforestation, propter rem civil liability for environmental damage, including climate damage, and collective moral damages. It also mentions the unauthorized emissions of Greenhouse Gases (GHG) caused by the illegal deforestation of the area, calculated at 1,088,203.70 tons of carbon dioxide and which are directly related to the Brazilian State’s departure from its climate goals, out of step with national and international commitments assumed by Brazil in the National Policy on Climate Change - PNMC (Federal Law 12,187/2009) and in the Paris Agreement (promulgated by Federal Decree 9,073/2017). Urgent relief is requested, under the terms specified in the initial petition. On the merits, it requests, among other things: (i) compensation for the damage caused by illegal deforestation; (ii) payment of compensation corresponding to intermediate and residual material environmental damage; (iv) payment of compensation corresponding to climate damage; and (v) payment of compensation corresponding to collective moral damage.

On July 22, 2024, the court granted the injunction based on the in dubio pro natura principle. It ordered the removal of all cattle from the area subject to the action within 15 days; a ban on issuing Animal Transportation Guides (GTA) and invoices for the movement of livestock from or to the property; the suspension and prohibition of access to public financing and tax benefits linked to the rural property and rural financing on behalf of the defendants; the suspension by IPAAM and INCRA of the CARs for the contested area. Federal Public Prosecutor’s Office v. Gilvan Souza and José dos Santos (Deforestation and climate damage in the Antimary PAE) (Brazil, Amazonas Federal Court)

Brazil: Civil Public Action Against Farmer for Unlawful Deforestation

On June 24, 2021, the Federal Public Prosecutor’s Office (MPF) filed a Civil Public Action (CPA) against Joel de Souza for deforesting an area of 146.75 hectares, between 2011 and 2020, in Boca do Acre, Amazonas. The MPF alleges that the defendant’s occupation of the land was illegal because it was part of an Agro-Extractivist Settlement Project (PAE), owned and managed by the National Institute for Colonization and Agrarian Reform (INCRA) and occupied by traditional extractivist communities. This ACP is part of a set of 22 lawsuits filed by the MPF as a result of the investigation carried out in Civil Inquiry No. 1.13.000.001719/2015-49 into illegal deforestation carried out inside the Antimary Agro-Extractivist Settlement Project (PAE), but against different defendants. The lawsuit is based, among other things, on Brazilian environmental law, concerning the constitutional protection of the environment, the accusation of deforestation, propter rem civil liability for environmental damage, including climate damage, and collective moral damages. It also mentions the unauthorized emissions of Greenhouse Gases (GHG) caused by the illegal deforestation of the area, calculated at 78,938.61 tons of carbon dioxide and which are directly related to the Brazilian State’s departure from its climate goals, out of step with national and international commitments made by Brazil in the National Policy on Climate Change - PNMC (Federal Law 12.187/2009) and in the Paris Agreement (promulgated by Federal Decree 9.073/2017). Among other requests: (i) reparation for the damage caused by illegal deforestation; (ii) payment of compensation corresponding to intermediate and residual material environmental damage; (iv) payment of compensation corresponding to climate damage; and (v) payment of compensation corresponding to collective moral damage. Federal Public Prosecutor’s Office v. Paulo de Lima Paulo  (Deforestation and climate damage in the PAE Antimary) (Brazil, Amazonas Federal Court)

Brazil: Individual Ordered to Rectify Unlawful Deforestation

On June 24, 2021, the Federal Public Prosecutor’s Office (MPF) filed a Civil Public Action (CPA) against Daniel Matias for deforesting an area of 117 hectares, between 2011 and 2020, in Boca do Acre, Amazonas. The MPF alleges that the defendant’s occupation of the land was illegal because it was part of an Agro-Extractivist Settlement Project (PAE), owned and managed by the National Institute for Colonization and Agrarian Reform (INCRA) and occupied by traditional extractivist communities. This ACP is part of a set of 22 lawsuits filed by the MPF as a result of the investigation carried out in Civil Inquiry No. 1.13.000.001719/2015-49 into illegal deforestation carried out inside the Antimary Agro-Extractivist Settlement Project (PAE), but against different defendants. The lawsuit is based, among other things, on Brazilian environmental law, concerning the constitutional protection of the environment, the accusation of deforestation, propter rem civil liability for environmental damage, including climate damage, and collective moral damages. It also mentions the unauthorized emissions of Greenhouse Gases (GHG) caused by the illegal deforestation of the area, calculated at 77,296.03 tons of carbon dioxide and which are directly related to the Brazilian State’s departure from its climate goals, out of step with national and international commitments made by Brazil in the National Policy on Climate Change - PNMC (Federal Law 12.187/2009) and in the Paris Agreement (promulgated by Federal Decree 9.073/2017). Among other requests: (i) reparation for the damage caused by illegal deforestation; (ii) payment of compensation corresponding to intermediate and residual material environmental damage; (iv) payment of compensation corresponding to climate damage; and (v) payment of compensation corresponding to collective moral damage.

On September 20, 2024, the court ordered the defendant (i) to recompose the degraded area; (ii) to pay compensation for material damages relating to interim and residual environmental damage, in an amount to be determined in the liquidation phase of the judgment; (iii) to pay compensation for climate damage caused by deforestation, in the amount of R$ 2,127,960.22 and (iv) to pay compensation for collective moral damages of R$ 409,500.00. The ruling recognized the existence of climate damage, unlawful conduct and a causal link, even though the defendant was not responsible for the deforestation, but benefited from the damage caused by a third party. To calculate the value of the climate damage, US$ 5.00 per ton of CO2e was adopted, per Ordinance 176/2023. Federal Public Prosecutor’s Office v. Daniel Matias (Deforestation and climate damage in the PAE Antimary) (Brazil, Amazonas Federal Court)

Brazil: Individual Ordered to Rectify Unlawful Deforestation

On September 14, 2021, the Federal Public Prosecutor’s Office (MPF) filed a Civil Public Action (CPA) against José Silva for deforesting an area of 170.83 hectares, between 2011 and 2020, in Boca do Acre, Amazonas. The MPF alleges that the defendant’s occupation of the land was illegal because it was part of an Agro-Extractivist Settlement Project (PAE), owned and managed by the National Institute for Colonization and Agrarian Reform (INCRA) and occupied by traditional extractivist communities. This ACP is part of a set of 22 lawsuits filed by the MPF as a result of the investigation carried out in Civil Inquiry No. 1.13.000.001719/2015-49 into illegal deforestation carried out inside the Antimary Agro-Extractivist Settlement Project (PAE), but against different defendants. The lawsuit is based, among other things, on Brazilian environmental law, concerning the constitutional protection of the environment, the accusation of deforestation, propter rem civil liability for environmental damage, including climate damage, and collective moral damages. It also mentions the unauthorized emissions of Greenhouse Gases (GHG) caused by the illegal deforestation of the area, calculated at 98,367.84 tons of carbon dioxide and which are directly related to the Brazilian State’s departure from its climate goals, out of step with national and international commitments made by Brazil in the National Policy on Climate Change - PNMC (Federal Law 12.187/2009) and in the Paris Agreement (promulgated by Federal Decree 9.073/2017). Among other requests: (i) reparation for the damage caused by illegal deforestation; (ii) payment of compensation corresponding to intermediate and residual material environmental damage; (iv) payment of compensation corresponding to climate damage; and (v) payment of compensation corresponding to collective moral damage.

On September 20, 2024, the court ordered the defendant (i) to recompose the degraded area; (ii) to pay compensation for material damages relating to interim and residual environmental damage, in an amount to be determined in the liquidation phase of the judgment; (iii) to pay compensation for climate damage caused by deforestation, in the amount of R$ 2,705,155.86 and (iv) to pay compensation for collective moral damages of R$ 597,905.00. The ruling recognized the existence of climate damage, unlawful conduct and a causal link, even though the defendant was not responsible for the deforestation, but benefited from the damage caused by a third party. To calculate the value of the climate damage, US$ 5.00 per ton of CO2e was adopted, per Ordinance 176/2023. Federal Public Prosecutor’s Office v. José Silva (Deforestation and climate damage in the Antimary PAE) (Brazil, Amazonas Federal Court)

Brazil: Civil Public Action Against Individual for Unlawful Deforestation

On September 14, 2021, the Federal Public Prosecutor’s Office (MPF) filed a Civil Public Action (CPA) against Josafá de Moura Cunha for deforesting an area of 37.51 hectares, between 2011 and 2020, in Boca do Acre, Amazonas. The MPF alleges that the defendant’s occupation of the land was illegal because it was part of an Agro-Extractivist Settlement Project (PAE), owned and managed by the National Institute for Colonization and Agrarian Reform (INCRA) and occupied by traditional extractivist communities. This ACP is part of a set of 22 lawsuits filed by the MPF as a result of the investigation carried out in Civil Inquiry No. 1.13.000.001719/2015-49 into illegal deforestation carried out inside the Antimary Agro-Extractivist Settlement Project (PAE), but against different defendants. The lawsuit is based, among other things, on Brazilian environmental law, concerning the constitutional protection of the environment, the accusation of deforestation, propter rem civil liability for environmental damage, including climate damage, and collective moral damages. It also mentions the unauthorized emissions of Greenhouse Gases (GHG) caused by the illegal deforestation of the area, calculated at 6,497.48 tons of carbon dioxide and which are directly related to the Brazilian State’s departure from its climate goals, out of step with national and international commitments made by Brazil in the National Policy on Climate Change - PNMC (Federal Law 12.187/2009) and in the Paris Agreement (promulgated by Federal Decree 9.073/2017). Among other requests: (i) reparation for the damage caused by illegal deforestation; (ii) payment of compensation corresponding to intermediate and residual material environmental damage; (iv) payment of compensation corresponding to climate damage; and (v) payment of compensation corresponding to collective moral damage. Federal Public Prosecutor’s Office v. Josafá de Moura Cunha (Deforestation and climate damage in the PAE Antimary) (Brazil, Amazonas Federal Court)

Brazil: Amicus Curiae Admitted in Action Against Individuals for Climate Damage

On September 20, 2020, the Federal Environment Agency (IBAMA) filed a Public Civil Action (ACP) against the estate of Celestino Alécio Fuchina Facco, Tereza Stefanello Facco, Tiago Stefanello Facco, Lucas Stefanello Facco and Natascha Maria Pedroso Facco, seeking compensation for environmental damage caused by the deforestation of 913.35 hectares of native vegetation in the municipality of Ulianópolis in Pará. IBAMA mentions a series of damages resulting from deforestation, including global warming and climate impacts. As a preliminary injunction, it requested that the economic use of the area be prohibited for the duration of the case, that funding and tax incentives and access to credit lines be suspended, and that the defendants’ assets be declared unavailable to guarantee the restoration of the damage. On the merits, it requests the environmental recovery of 913.35.60 hectares of Amazon rainforest and the payment of compensation for the interim and residual damage caused to the environment, as well as moral damage and compensation for the illicit economic profit.


On July 3, 2022, Observatório do Clima filed its amicus brief to subsidize the decision on the merits regarding the need for express recognition of the climate damage. It argues that international commitments and national legislation guarantee the right to climate stability, an integral part of the fundamental right to an ecologically balanced environment. According to the NGO, the plaintiff’s claim for compensation for interim and residual damages includes climate damage, with global warming and climate impacts having been expressly mentioned in the initial petition as damages resulting from deforestation. However, it claimed that, when the case was filed, there was no methodology to quantify the damage, leading IBAMA to request that it be calculated at the liquidation stage. Observatório do Clima then submitted a Technical Note with a methodology for quantifying and pricing the carbon dioxide (CO2) released into the atmosphere due to the deforestation of the area mentioned in the initial petition. Based on the standard price of US$5.00/tCO2e, practiced by the Amazon Fund to raise funds for forest preservation, the climate damage in this case was calculated at R$23,159,018.18. It argued that climate damage resulting from illegal deforestation is an environmental damage that cannot be ignored, especially considering the principle of full reparation of environmental damages.

On March 5, 2024, the court granted the admission of the NGOs Observatório do Clima and Instituto Arayara as amicus curiae. IBAMA v. Estate of Celestino Alecio and others (Deforestation and climate damage in Ulianópolis) (Brazil,  Pará Federal Court)

Brazil: Farmer Ordered to Remedy Unlawful Deforestation of Land

On September 15, 2021, the Federal Public Prosecutor’s Office (MPF) filed a Civil Public Action (CPA) against Nilma Félix for deforesting an area of 135.80 hectares in 2018, in Boca do Acre, Amazonas. The MPF alleges that the defendant’s occupation of the land was unlawful because it was part of an Agro-Extractivist Settlement Project (PAE), owned and managed by the National Institute for Colonization and Agrarian Reform (INCRA) and occupied by traditional extractivist communities. This ACP is part of a set of 22 actions brought by the MPF as a result of the investigation carried out in Civil Inquiry No. 1.13.000.001719/2015-49 into illegal deforestation carried out inside the Antimary Agro-Extractivist Settlement Project (PAE), but against different defendants. The lawsuit is based, among other things, on Brazilian environmental law, concerning the constitutional protection of the environment, the accusation of deforestation, propter rem civil liability for environmental damage, including climate damage, and collective moral damages. It also mentions the unauthorized emissions of Greenhouse Gases (GHG) caused by the illegal deforestation of the area, calculated at 77,583.75 tons of carbon dioxide and which are directly related to the Brazilian State’s departure from its climate goals, out of step with national and international commitments assumed by Brazil in the National Policy on Climate Change - PNMC (Federal Law 12.187/2009) and in the Paris Agreement (promulgated by Federal Decree 9.073/2017). Among other requests: (i) reparation for the damage caused by illegal deforestation; (ii) payment of compensation corresponding to intermediate and residual material environmental damage; (iv) payment of compensation corresponding to climate damage; and (v) payment of compensation corresponding to collective moral damage.

The defendant was declared in default.

On September 20, 2024, the court ordered the defendant (i) to recompose the degraded area; (ii) to pay compensation for material damages relating to interim and residual environmental damage, in an amount to be determined in the liquidation phase of the judgment; (iii) to pay compensation for climate damage caused by deforestation, in the amount of R$2,133,553.12 and (iv) to pay compensation for collective moral damages of R$2,000.00 per hectare deforested. The ruling recognized the existence of climate damage, unlawful conduct and a causal link, even though the defendant was not responsible for the deforestation, but benefited from the damage caused by a third party. To calculate the value of the climate damage, US$ 5.00 per ton of CO2e was adopted, per Ordinance 176/2023. An appeal is currently underway. Federal Public Prosecutor’s Office v. Nilma Félix (Deforestation and climate damage in the PAE Antimary) (Brazil, Amazonas Federal Court)

Brazil: Individual Ordered to Rectify Unlawful Deforestation of Forest

On September 9, 2021, the Federal Public Prosecutor’s Office (MPF) filed a Civil Public Action (CPA) against Joel de Souza for deforesting an area of 172.43 hectares, between 2011 and 2020, in Boca do Acre, Amazonas. The MPF alleges that the defendant’s occupation of the land was illegal because it was part of an Agro-Extractivist Settlement Project (PAE), owned and managed by the National Institute for Colonization and Agrarian Reform (INCRA) and occupied by traditional extractivist communities. This ACP is part of a set of 22 lawsuits filed by the MPF as a result of the investigation carried out in Civil Inquiry No. 1.13.000.001719/2015-49 into illegal deforestation carried out inside the Antimary Agro-Extractivist Settlement Project (PAE), but against different defendants. The lawsuit is based, among other things, on Brazilian environmental law, concerning the constitutional protection of the environment, the accusation of deforestation, propter rem civil liability for environmental damage, including climate damage, and collective moral damages. It also mentions the unauthorized emissions of Greenhouse Gases (GHG) caused by the illegal deforestation of the area, calculated at 119,944.34 tons of carbon dioxide and which are directly related to the Brazilian State’s departure from its climate goals, out of step with national and international commitments made by Brazil in the National Policy on Climate Change - PNMC (Federal Law 12.187/2009) and in the Paris Agreement (promulgated by Federal Decree 9.073/2017). Among other requests: (i) reparation for the damage caused by illegal deforestation; (ii) payment of compensation corresponding to intermediate and residual material environmental damage; (iv) payment of compensation corresponding to climate damage; and (v) payment of compensation corresponding to collective moral damage.

On May 27, 2022, the defendant filed a defense, alleging that he was not the owner or possessor of the area, having been a mere holder; he denied having caused environmental damage; he stated that, in 2018, “he acquired a herd of cattle in the region where the property is located, so that, as he was not the owner or possessor of any property in the area, he needed to rent/lease pastures for grazing said herd of cattle”. He therefore requested that the case be dismissed.

On September 20, 2024, the court ordered the defendant (i) to recompose the degraded area; (ii) to pay compensation for material damages relating to interim and residual environmental damage, in an amount to be determined in the liquidation phase of the judgment; (iii) to pay compensation for climate damage caused by deforestation, in the amount of R$3,298,469.42 and (iv) to pay compensation for collective moral damages of R$603,505.00. The ruling recognized the existence of climate damage, unlawful conduct and a causal link, even though the defendant was not responsible for the deforestation, but benefited from the damage caused by a third party. To calculate the value of the climate damage, US$ 5.00 per ton of CO2e was adopted, per Ordinance 176/2023. An appeal is currently underway. Federal Public Prosecutor’s Office v. Joel de Souza (Deforestation and climate damage in the PAE Antimary) (Brazil, Amazonas Federal Court)

Brazil: Case for Unlawful Deforestation of Land Dismissed Against Individual on Grounds of Lack of Standing, Action Brought Against Proper Parties Instead

On September 14, 2021, the Federal Public Prosecutor’s Office (MPF) filed a Public Civil Action (ACP) against Silvane de Souza Mendes for deforesting an area of 183.85 hectares between 2017 and 2018, in Boca do Acre, Amazonas. The MPF alleges that the defendant’s occupation of the land was illegal because it was part of an Agro-Extractivist Settlement Project (PAE), owned and managed by the National Institute for Colonization and Agrarian Reform (INCRA) and occupied by traditional extractivist communities. This ACP is part of a set of 22 actions brought by the MPF as a result of the investigation carried out in Civil Inquiry No. 1.13.000.001719/2015-49 into illegal deforestation carried out inside the Antimary Agro-Extractivist Settlement Project (PAE), but against different defendants. The lawsuit is based, among other things, on Brazilian environmental law, concerning the constitutional protection of the environment, the accusation of deforestation, propter rem civil liability for environmental damage, including climate damage, and collective moral damages. It also mentions the unauthorized emissions of Greenhouse Gases (GHG) caused by the illegal deforestation of the area, calculated at 108,820.37 tons of carbon dioxide and which are directly related to the Brazilian State’s departure from its climate goals, in disagreement with national and international commitments assumed by Brazil in the National Policy on Climate Change - PNMC (Federal Law 12.187/2009) and in the Paris Agreement (promulgated by Federal Decree 9.073/2017). Among other requests: (i) reparation for the damage caused by illegal deforestation; (ii) payment of compensation corresponding to intermediate and residual material environmental damage; (iv) payment of compensation corresponding to climate damage; and (v) payment of compensation corresponding to collective moral damage.

The defendant filed a defense in which she argued that she had no standing to be sued and requested that the suit be dismissed.

On July 16, 2024, the court issued a ruling in which it dismissed the lawsuit. It was based on the MPF’s request, which recognized, due to police investigations, that the CAR on which the lawsuit was based was defrauded by a third party on behalf of the defendant, who therefore has no connection with the deforested area.

The judgment became final and the case was definitively shelved. The MPF then filed an ACP against the legitimate defendants, which was given the number 1015921-77.2024.4.01.3200. Federal Public Prosecutor’s Office v. Silvane de Souza Mendes (Deforestation and climate damage in the Antimary PAE) (Brazil, Amazonas Federal Court)

Germany: Company Made A Voluntary Cease-And-Desist Declaration Committing to Transparency in Promotion of Its Products

The company Beiersdorf AG is being accused of not being transparent enough regarding its claims of climate neutrality.

On May 23, 2023, Beiersdorf AG submitted a cease-and-desist declaration with penalty provisions before the Regional Court of Hamburg, committing to greater transparency in the promotion of its products (Case Number 312 O 126/22). In the future, internet links and/or QR codes will be used to directly reference the pages that provide information about the projects used for compensation. By submitting the declaration, Beiersdorf preempted a court ruling that was expected to uphold three of the four claims in the lawsuit. Deutsche Umwelthilfe v. Beiersdorf AG (Germany, Regional Court of Hamburg)

Germany: Oil and Energy Company (BP Europa SE) No Longer Able to Advertise Lubricants and Motor Oil Products as “Climate Neutral” or as a “Certified Carbon Neutral Product”

In 2024, the Regional Court of Hamburg ruled that the oil and energy company BP Europa SE may no longer advertise its lubricants and motor oils as “climate neutral” or with the label “certified carbon neutral product.” The oil giant justified the alleged climate neutrality of its products by purchasing carbon credits, including those from a forest conservation project in Zambia. Deutsche Umwelthilfe v.  BP Europa SE (Germany, Regional Court of Hamburg)

Germany: Judgment Entered against Cosmetics Company’s “Climate-Neutral” Advertisements for Catrice and Essence Brands

The cosmetics company Cosnova was accused of promoting products from its brands Catrice and Essence as climate-neutral. The Regional Court of Oldenburg issued a default judgment against the defendant. Deutsche Umwelthilfe v. CEWE Stiftung & Co. KGaA (Germany, Regional Court of Oldenburg)

Norway: Oslo District Court Reversed Injunction Order Prohibiting State from Adopting Other Decisions That Require a Valid Plan for Development and Operation (PDO) Approval

On June 29, 2023, two environmental NGOs, Greenpeace Nordic and Natural og Ungdom (Nature & Youth), challenged three administrative decisions whereby the Norwegian Energy Ministry approved the plan for the development and operation of the oil and gas fields of Breidablikk, Yggdrasil, and Tyrving in the North Sea. The three fields in question have been subject to impact assessments by the companies that are operators and licensees for the fields. However, these impact assessments do not include combustion (Scope 3) emissions from the oil and gas produced.

In the absence of administrative or specialized environmental courts in the Norwegian legal system, the lawsuit occurred in a civil court. The plaintiffs based their challenge on various legal grounds, including Section 4-2, second paragraph, of the Petroleum Act, alongside Section 22a of the Petroleum Regulations. The interpretation of these statutes was guided by Article 112 of the Norwegian Constitution, emphasizing the right to a healthy environment. Additionally, the challenge was grounded in compliance with the EU Directive on Environmental Impact Assessments (EIA Directive). The plaintiffs also invoked legal sources such as Articles 2 and 8 of the European Convention on Human Rights (ECHR), on the right to life and right to respect for private life and family life and home, respectively, both independently and in conjunction with Article 14 of the ECHR, prohibiting discrimination. Furthermore, the challenge drew support from Section 104, second paragraph, of the Norwegian Constitution, which focuses on the dignity rights of children and the obligation to incorporate their best interests, and Article 3 of the UN Convention on the Rights of the Child, on the best interests of the child. Further legal theories encompass Norway’s Nature Diversity Act and Public Administration Act.

Essentially, the plaintiffs argued that the assessment of Scope 3 emissions should have been conducted before issuing the three administrative decisions. In contrast, the Ministry of Petroleum and Energy, now the Ministry of Energy, asserted that a general-level assessment of Scope 3 emissions by the Ministry sufficed and that there was no explicit requirement for this assessment to be integrated into the specific impact assessments for the Breidablikk, Yggdrasil, and Tyrving fields.

On January 18, 2024, the Oslo District Court concluded that all three decisions were unlawful. There is a legal requirement that Scope 3 emissions must be subject to an impact assessment pursuant to Section 4-2 of the Petroleum Act and Section 22a of the Petroleum Regulations, interpreted in light of Article 112 of the Norwegian Constitution (on the right to a healthy environment). This also follows from Article 4 no. 1 of the EU EIA Directive, Article 3 no. 1. Conversely, for the three challenged administrative decisions, no impact assessment of Scope 3 emissions had been carried out, contrary to the Norwegian Supreme Court’s ruling in the first Norwegian Climate Case (https://climatecasechart.com/non-us-case/greenpeace-nordic-assn-and-nature-youth-v-norway-ministry-of-petroleum-and-energy/#:~:text=The%20Oslo%20District%20Court%20ruled,before%20making%20the%20licensing%20decision). By referring to the mentioned Supreme Court’s decision, the Oslo District Court asserted that the greater the consequences of a measure under review, the stricter the EIA requirements. Similarly, the greater the consequences of a measure, the more thorough the court’s procedural review must be. For petroleum activities, courts should not be reluctant to review cases on procedural grounds, in this case, the EIA (p. 27). Differently from the first Norwegian Case, where the challenged decision sprang from a Parliament’s resolution, the challenged decisions are of the Ministry’s competence, yielding to more judicial scrutiny. In connection to such scrutiny, the Court cited the IPCC AR6, comparative case law, and expert opinions heard during the case hearing.

Further, the Court concluded that there is no legal obligation to consider the best interests of children in connection with each individual decision on a plan for development and operation (PDO) of petroleum activities. The Court, therefore, concluded that the decisions are not contrary to section 104 of the Norwegian Constitution and Articles 3 and 12 of the UN Convention on the Rights of the Child. The Court concluded that the decisions are not contrary to Articles 2, 8, and 14 of the European Convention on Human Rights (ECHR), pending a challenge to the mentioned Supreme Court’s decision before the ECtHR (https://climatecasechart.com/non-us-case/greenpeace-nordic-assn-v-ministry-of-petroleum-and-energy-ecthr/). Remarking on remedies, the application for a temporary injunction was granted in that the state is prohibited from adopting other decisions that require valid PDO approval for Breidablikk, Yggdrasil and Tyrving until the validity of the decisions has been finally decided. The state, represented by the Ministry of Petroleum and Energy, was ordered to reimburse the plaintiffs’ legal costs in connection with the case (NOK 3 260 427, circa USD 309,833.49- incl. VAT in compensation for legal costs to the plaintiffs). In addition, the court’s fee will be included.

On May 16, 2024, the Appeals Court in Oslo (Borgarting lagmannsrett) decided to bifurcate the case. The State’s appeal against the Oslo District Court’s ruling in the injunction case of January 18, 2024, will be heard during the Court of Appeal’s appeal hearing concerning the main case, but the right to enforce the District Court’s temporary injunction is suspended until the Court of Appeal has ruled on the appeal against the District Court’s ruling.

In its judgment from October 14, 2024, the Oslo Court of Appeals reversed the interim injunction. By referring to a report by Rystad Energy, commissioned by the Ministry of Energy, it argued that increased production from the Norwegian continental shelf could reduce global greenhouse gas emissions. The court also mentioned the complex interplay of economic and societal factors, including lost tax revenue, potential losses for companies and shareholders, job losses, reduced investor confidence in the Norwegian shelf, and implications for European energy supply and security. Except for an argument about risks to the sand eel population, the appellants’ claims were showcased as unrelated to the fields but rather constituting a broader challenge to Norwegian petroleum activities, which the court noted should first be assessed by the Norwegian Parliament and government, not by the courts. The court denied that the principle of effectiveness of EEA (EIA) law and the KlimaSeniorinnen judgment by the ECHR could offer counterarguments to the denial. Greenpeace Nordic and Nature & Youth v. Energy Ministry (The North Sea Fields Case) (Norway, Oslo District Court)

Romania: Case to Suspend Expropriation of Forest Land in the Mihăileni Accumulation Project Dismissed

An NGO, Declic, had been advocating for the suspension of the effects of the government decision which decided on the expropriation of land with forest vegetation concerning the Mihăileni Accumulation project, which raises significant legal issues and has been the subject of judicial scrutiny by the courts of Cluj. (see judgment rendered in case no. 513/117/2022). Given this legal context, expropriating predominantly forested land for the purpose of deforestation is not only premature but also illegal. It violates both national and EU rules assumed by Romania regarding preventing water body deterioration, mitigating climate change, and protecting biodiversity. The government’s decision was adopted without conducting an environmental impact assessment, and the project’s operations were to be carried out under a building permit issued in 1987.

The plaintiff asserted that in the absence of a suspension of the effects of the government decision pending the determination of the main action:

1.        The expropriation of housing, productive land, and forests would result in their destruction and replacement by an artificial accumulation. Such an action would inevitably result in irreparable ecological damage.

2.        When the area is flooded, the methane stored in the forested land will be released into the atmosphere. Forests are a natural carbon store. The greenhouse effect of methane is approximately 29 times that of carbon dioxide over 100 years, 86 times over 20 years, and more than 100 times over a few years. The damage to the climate will be irreparable.

The plaintiff referenced Paul Crutzen, the Dutch chemist who, along with other scientists, was awarded the Nobel Prize for discovering the effects of ozone-depleting compounds: “...humans have altered the composition of the atmosphere. Because of fossil fuel and deforestation, the concentration of carbon dioxide in the air has increased by 40% over the last two centuries, while the concentration of methane, an even more potent greenhouse compound, has almost doubled.”

The Cluj Court of Appeal found prima facie in agreement with the applicant that there are contradictions between the finding of the cross-sectoral nature of flood management and the concrete measures to be taken, namely deforestation, which appears to be at odds with the concepts of sustainable development and forestry development. In that regard, the Court noted that at this stage, there are no studies to determine to what extent the change in land use will impact the climate, contrary to Romania’s commitments to reduce GHG emissions.  Building upon his initial observations, Judge Simon Antoniu noted that these potential environmental impacts not only contradict the existing legal framework at the national level but also appear to diverge from the interpretation of the Court of Justice of the European Union regarding the deterioration of riverine ecosystems. In light of the considerations above, it is imperative that this action be avoided and that states are held to the obligation “to refuse to authorize a project if it is likely to deteriorate the status of the body of water in question or to compromise the achievement of good status of surface water bodies” (Judgment in Case C-461/13 Bund fur Umwelt und Naturschutz Deutschland eV v Bundesrepublik Deutschland, paragraph 50).

The judgment no. 219/2022 is final, as the appeal filed by the Romanian Government was rejected in October 2023 by the High Court of Cassation and Justice. Mihaileni Dam Project (Romania, Cluj Court of Appeal)

Romania: Judicial Review For Application Compelling Government Authorities to Take Action to Reduce GHG Emissions by 2030

On January 31, 2023, the NGO Declic and a group of individuals issued an application for judicial review  before the Cluj Court of Appeal against the Romanian Government, the Ministry of Energy, the Ministry of Environment, Water and Forests, seeking that the court order the authorities to take all necessary measures to reduce greenhouse gas emissions (hereinafter referred to as “GHG”) by 55% by 2030 compared to 1990 levels and to achieve climate neutrality by 2050. They also demand that the Court order the Romanian Government et al. to take adequate measures to increase the share of renewable energy in final energy consumption to 45% and to increase energy efficiency by 13% by 2030.

Last but not least, they requested the court to order the Romanian authorities to implement concrete and coherent climate change mitigation and adaptation plans, including annual carbon budgets, within a maximum of 30 days from the final judgment, in order to meet the objectives of the Paris Agreement.

In a nutshell, there were three big questions needed to be answered by the Court:

1. Whether national authorities are in breach of their legal obligations by applying GHG emission reduction targets for 2030 that are significantly lower than the target agreed at EU level for 2030.

2. Whether, according to objective standards, the measures taken by central authorities are sufficient, proportionate and will result in limiting global warming to 1.5-2 degrees Celsius?

3. Are the measures taken by the defendants compatible with the rights and freedoms guaranteed by the Romanian Constitution, the EU Charter of Fundamental Rights and the ECHR (right to a future in accordance with human dignity, right to health and an ecologically balanced environment, right to life and privacy)?

The defendants objected that the co-plaintiffs lacked standing and sufficient interest to bring the case to the court. They also argued that such an action, if granted, would violate the principle of the separation of powers.

The Ministry of Environment, Water and Forestry had also raised the objection of passive standing in respect of the 2nd head of the claim- to take adequate measures to increase the share of renewable energy in final energy consumption to 45% and to increase energy efficiency by 13% by 2030.

The trial judge of the Court of First Instance rejected the objection of lack of locus standi and the objection of the lack of interest on the part of the applicants, essentially by holding that the present case concerned an unjustified refusal to deal with an application which had implications in terms of the right to life and to a healthy environment, so that Article 1 of the Administrative Litigation Act No. 554/2004 ought to be applied. In determining the objections raised by the defendants, the Court duly took into account Article 95, Article 20 (6), Article 3, and Article 5 of GEO No. 195/2005- Law on Environmental Protection, in conjunction with Article 3 of Declic’s  Articles of Association.

The Court of First Instance dismissed the objection of passive standing in relation to the 2nd head of claim on the ground that a shared/interdependent power is established between the Ministry of the Environment, Water and Forestry and the Ministry of Energy with a view to ensuring an increase in the share of renewables in the final energy consumption and an increase in energy efficiency. Moreover, the trial judge noted that the question of the existence or non-existence of the rights and obligations asserted in relation to certain specific measures necessary to achieve the quotas set out in the application is a matter of substance, not of standing.

At the same time, the trial judge expressed neatly that in the case of a complex action which comprises several heads of claim which interfere with each other, the existence of the defendants’ passive standing must be analysed in relation to the whole of the action, and not in relation to each head of claim, in a piecemeal manner, as such an analysis would be hollow and devoid of legal finality.

However, when considering the merits of the case, the Court of First Instance dismissed the co-plaintiffs’ application, for the following key reasons:

• Granting the application when the operative part of the judgment does not  because it cannot identify what measures are necessary and the concrete and coherent plans to achieve the climate objectives, would result in the delivery of a judgment which is unenforceable and which would constitute a violation of Article 6 of the European Convention on Human Rights, with reference to the case law of the European Court of Human Rights, which has held that the right to apply to a court would be illusory if the domestic legal order of a Contracting State allowed a final and binding judgment to be ineffective to the detriment of a party (Imobiliara Saffi v Italy - 1999, paragraph 63; Dorneanu v Romania - 2007, paragraph 32).
• By granting a judgment allowing the claimants’ action, without indicating any criteria on the basis of which the claim contained in the enforceable title becomes certain (the claimants leaving the defendants free to decide on the measures to be taken, even though the premise of the present dispute is, from their point of view, precisely the inadequacy of the measures taken), the judgment debtors are left free to refuse or to determine the scope and application of the enforceable title themselves.

The plaintiffs appealed against the judgment.

They also submitted a memorandum to the Romanian Supreme Court, requesting it to ask the European Court of Human Rights for an advisory opinion under the 16th Protocol to the ECHR on the following points:

(1)         Does the decision of the court of first instance dismissing the action for failure to identify a specific measure to which the defendants are to be obliged infringe the doctrine of the margin of appreciation enshrined in the case-law of the ECtHR?

(2)         The question to be answered by the ECtHR is whether, having regard to the individual circumstances of the present case, the national court can be considered to have taken a decision on the merits of the case concerning the rights alleged to have been infringed, within the meaning of Article 13 ECHR and as consolidated in ECtHR case-law?

(3)         Whether the refusal to hear the case on the ground that the collective effort to combat climate change entails the jurisdiction of a supranational jurisdiction violates the procedural rights under Articles 6 and 13 ECHR?

(4)         Whether the removal of soft-law interpretation tools from the case, without giving reasons constitutes a violation of Articles 6 and 13 ECHR?

(5)         Whether the violation of the rights of access to a court and to an effective remedy amounts to a violation of Articles 2 and 8 ECHR, as well as the constitutional right to a healthy and ecologically balanced environment?

Declic et al. v. The Romanian Government (Romania, Cluj Court of Appeal)

South Korea: Constitutional Court Dismissed Action Alleging National Climate Change Law Violated Rights of Activists

On March 13, 2020, nineteen youth activists filed a complaint in the South Korean Constitutional Court alleging that the nation’s climate change law violates their fundamental rights, including the right to live and a clean environment. South Korea’s Framework Act on Low Carbon, Green Growth, which was amended in December 2019, commits to reducing annual nationwide greenhouse gases to 536 million tons by 2030, a 24% cut from 2017. The petitioners argue that this target is insufficient to keep global warming below 2 degrees Celsius.

The petitioners submitted a supplemental complaint on May 15, 2020, to provide the Court with info on the facts and science of climate change, and, in their view, Korea’s insufficient response to the threat.

On September 28, 2020, the petitioners submitted a supplemental brief to provide the Court with updated info on recent severe climate impacts in South Korea, the need for a prompt hearing of the case, and the Irish Supreme Court’s handling of a similar case in Friends of the Irish Environment v. Ireland. On January 26, 2021, the petitioners filed a second supplemental brief with arguments on the South Korean government’s violation of its obligation to protect citizens from the harms of climate change. The brief argues that the obligation to respond to climate change is derived from the Korean constitution’s guarantee of the right to a healthy environment, the obligation to prevent disasters, and the obligation to protect health and safety. Petitioners argue that the government has violated this obligation by failing to enact adequate and effective climate legislation, and that petitioners have standing to challenge legislative omissions due to inadequate protection of environmental rights. On April 15, 2021, the plaintiffs submitted a third supplemental brief presenting arguments that the climate change law and enforcement of that law are underprotecting their basic rights and are violating their equal rights.

On February 15, 2024, this case was consolidated with three others.

On August 29, 2024, in a unanimous decision, the Constitutional Court found that Article 8 Paragraph 1 of the Framework Act on Carbon Neutrality and Green Growth violates the right to healthy environment under Article 35 of the Constitution, and ordered the National Assembly to amend the law by February 28, 2026.

The Constitutional Court first acknowledged that the right to healthy environment under Art. 35 of the Constitution addresses the harm and risks related to climate change and that the State has an obligation to protect such rights by mitigating the cause of climate change and reducing the harm by adapting to climate change. The Court then ruled that in order to appropriately address such issue, the State’s measures on climate change (i) must be based on South Korea’s share of efforts in light of the global efforts based on scientific facts and international standards, (ii) should not impose excessive burden to the future, and (iii) must be based on legal framework that ensures continuous reduction of greenhouse gas.

In light of these standards, the Court ruled that Art. 8 Paragraph 1 of the Act has failed to meet these standards by not prescribing any targets or plans between the period 2031 - 2049, which inevitably results in postponing of reduction efforts. The Court also ruled that the provision violated the “principle of legislative reservation” stating that the framework of the reduction pathway up to 2050 must be set by law, by the Legislature, considering its implications on various fundamental rights, and the fact that the future generation has limited opportunity to present its interest in the process.

On the 2030 reduction target set by the Enforcement Decree, the Court ruled that it is unable to identify a single standard or criteria to determine the appropriate share of South Korea in the global efforts and therefore cannot conclude that the target is in violation of the State’s obligation. However, the Court also stated that it does not mean the State is doing its best on climate mitigation.

On the Carbon Neutrality Plan, the Court was divided. The majority, 5 justices, opined the Carbon Neutrality Plan is unconstitutional because the 40% reduction is based on “gross emission” of the base year 2018, and “net emission” of the target year 2030. Because the base year excludes carbon removal by LULUCF and the target year includes carbon removal by LULUCF, the majority opinion ruled that the actual reduction efforts of the plan does not meet the stated 40% and has violated the mandate of the Enforcement Decree. On the other hand, 4 justices dismissed the claim stating that because the language of the provision of the Act did not distinguish gross emission and net emission, such discrepancy would not amount to unconstitutionality. As the Constitutional Court Act requires super-majority (2/3) for decision of unconstitutionality, the claim on Carbon Neutrality Plan was dismissed. Do-Hyun Kim et al. v. South Korea (South Korea, Constitutional Court)

NEW CASES

Brazil: Public Civil Action Filed Against Farm Owners for Compensation from Illegal Acts of Climate Damage

On September 12, 2024, the Federal Environment Agency Chico Mendes Institute for Biodiversity Conservation (ICMBio) filed a Public Civil Action (ACP) against Sandra Mara Silveira, the late Pedro Cordeiro’s estates, Marcio Natalino Piovesan Cordeiro, Adrielle Silveira Piovezan and Davi Silveira Piovazan for illegal deforestation. Compensation is being sought exclusively for climate damage related to environmental offenses committed in an area of 7,075 hectares, comprised of three farms overlapping the Jamanxin National Forest.

The plaintiff maintains that the case does not deal with the recovery of the degraded area or compensation for material damage and collective moral damage, which are already the subject of a lawsuit filed by the Federal Public Prosecutor’s Office. The area had already been subject to several infraction notices, embargoes, and interdiction notices issued by IBAMA and ICMBio. The plaintiff claims that the climate damage results from illegal acts of deforestation, fires, the use of herbicides, the introduction of exotic species, the destruction of permanent preservation areas, and the prevention of regeneration of native vegetation to raise cattle in the federal public domain area. These actions are responsible for the illegitimate emission of greenhouse gasses (GHG), causing climate damage. In addition, keeping cattle aggravates the climate damage within the National Forest, considering the methane emitted. Based on the polluter pays principle, ICMBio claims that the negative climate externality represents an external social cost not internalized by the activity of illegally suppressing vegetation, translated into the social cost of carbon (SCC). It argues that the compensation for climate damage can be quantified by multiplying the estimated GHG emissions from the activity by the SCC cost used by the OECD. ICMBio considers that the offenses were committed in specially protected territorial space, aggravating the environmental damage. It, therefore, requests a 50 percent increase in the value of the SCC, resulting in a quantum to be compensated of R$210,842,782.50. The plaintiff requests as an injunction (i) the immediate eviction from the area; (ii) a ban on exploitation of the area; (iii) the suspension of tax incentives and benefits and access to credit lines; (ii) the unavailability of assets in the amount estimated for the obligation to pay compensation for climate damage, and (iii) the unavailability of cattle in the area. It affirms the need to reverse the burden of proof and, definitively, requests that the defendant be ordered to pay the amount of the social cost of carbon. ICMBio v. Sandra Silveira and others (Deforestation and climate damage in the Jamanxim National Forest) (Brazil, Pará Federal Court)

Brazil: Public Civil Action Filed Against Federal Environmental Agency and National Department of Infrastructure and Transport for Annulment of License for Reconstruction and Paving of Highway

On January 22, 2024, Observatório do Clima has filed a Public Civil Action (ACP) against the federal environmental agency IBAMA and the National Department of Infrastructure and Transport (DNIT), seeking the annulment of the Preliminary License for the reconstruction and paving of the “middle section” of the BR-319 highway.

The plaintiff claims that paving the BR-319 would open new fronts for deforestation and land occupation in the Amazon. It says that in 2005, IBAMA began the licensing process for the paving of the middle section of the BR-319 highway, during which the environmental agency showed great concern about the increase in deforestation around the highway, the threat to biodiversity, and the potential for the grabbing of public land in the Amazon. However, according to Observatório do Clima, IBAMA’s issuance of Preliminary License (LP) 672/2022 did not consider the environmental agency’s previous concerns. It claims that the license was granted (i) without a climate impact study; (ii) without prior consultation with the traditional communities that the project would impact; (iii) despite the lack of minimum environmental governance to deal with the complexity of the environmental consequences of the project; and (iv) contrary to the guidelines of a Working Group formed by environmental agencies and an Inter Ministerial Committee, which indicated the need to adopt a series of measures associated with environmental governance before issuing the preliminary license. It highlights the importance of the Amazon rainforest for climate balance. It points out that deforestation in the biome would increase carbon dioxide emissions, exacerbate climate change, and that the absence of Free, Prior, and Informed Consultation would infringe on the rights of indigenous peoples. Observatório do Clima argues that the Brazilian legal system requires environmental licensing to assess the climate variable and failure to do so would render the preliminary license granted null and void. Based on the above, it requests a preliminary injunction to suspend the effectiveness of LP 672/2022, the reversal of the burden of proof, and, at the end of the trial, the annulment of the preliminary license, as well as any administrative acts arising from it.

On May 16, 2024, DNIT presented its defense, arguing that it had no legal standing and that the chosen procedure was inappropriate, and requested that the injunction be rejected. It argued for the presumption of legitimacy of administrative acts and the impossibility of judicial interference in administrative merit under penalty of violating the principle of separation of powers. It argued that it could not guarantee the socio-environmental measures needed around the BR-319 project, which are the responsibility of environmental, indigenous, land, and other bodies and agencies. Thus, it stated that environmental licensing could not make up for the lack of structure of the various bodies and authorities involved in environmental inspection policies and the prevention and control of deforestation in the Amazon. As for the request for a climate impact study, it argued that such an impact would derive from the possible increase in illegal deforestation generated by insufficient environmental governance in the areas close to the highway and would not be related to the technological solution applied to the project. It claimed that there had been prior consultation with indigenous peoples. In this way, it argued that it had complied with the environmental licensing process determined by IBAMA.

On May 17, 2024, IBAMA presented its defense, arguing the presumption of legitimacy of administrative acts and the impossibility of judicial review. It argued that DNIT, the project’s proponent, lacked the administrative competence to carry out environmental policy measures, especially in the context of licensing. As for carrying out a climate impact study, it mentioned that the technical analyses assessed the issues directly related to the subject, such as deforestation, changes in land use, and adapting the project to climate events, and that the EIA/RIMA contained data for defining measures to control and mitigate these impacts. It argued that halting the licensing process would imply additional costs in preparing new assessments and studies and that there was no risk of damage to the useful outcome of the process, among other allegations.

On July 24, 2024, an injunction was issued in favor of the plaintiff’s claims. The decision stated that the presumption of legality of administrative acts is relative and that the judiciary can control their constitutionality and legality. It questioned the validity of the preliminary license given the potentially severe environmental damage, such as deforestation, loss of biodiversity, damage to the climate system, and impacts on indigenous and traditional communities, among others. In this sense, the judge stated that a balanced environment is a human right and essential for the enjoyment of other rights, such as life and health, and that the judiciary is responsible for guaranteeing its protection against harm. The decision recognized that the case aims to ensure that the licensing process is carried out responsibly and adequately, guided by the technique and the best science applicable to control risks and damages, to allow the BR-319 project to coexist without undermining the duty to protect the Amazon rainforest. To this end, the lawsuit seeks compliance with the legal procedures for conducting technical studies, including climate impact studies and prior consultation with indigenous peoples and traditional communities. The decision stated that environmental licensing must include a climate diagnosis to establish adequate and proportionate mitigation and compensation measures under Brazilian legislation and international commitments. It affirmed the importance of the dimensions of climate mitigation and adaptation. It considered that the insufficiency of public policies and the lack of adequate state structures to prevent the rehabilitation of the BR-319 highway from destroying the Amazon rainforest had been demonstrated, ruling that the project was environmentally unfeasible. It, therefore, granted the request for the immediate suspension of the preliminary license.

IBAMA, the Federal Union, and DNIT appealed the decision, and on October 7th, 2024, the Reporting Judge of the Federal Regional Court of the 1st Region decided to suspend the effects of the preliminary injunction. According to the judge, the appealed decision had mistakenly concluded that the granting of a preliminary license was related to the execution stage of the project. In fact, this administrative act was merely evaluative in nature.  It was argued that the permit issued fulfilled the objective of attesting to the environmental viability of the project. It argued that the EIA/RIMA adequately fulfilled its purpose of exposing the real and potential environmental damage resulting from the project. The decision also argued that there is no normative, jurisprudential, or doctrinal provision on the obligation to prepare a climate impact study. It concluded that the EIA/RIMA exhaustively identified the activities that generate GHG emissions, which would meet what the appealed decision qualified as a climate impact study. Finally, it understood that (i) the environmental licensing complied with the provisions of ILO Convention 169 regarding prior consultation, (ii) the EIA/RIMA recognized the need to implement public policies in the Amazon region, and (iii) stressed the importance of restructuring the BR-319 for the development of the region. Observatório do Clima vs. IBAMA and the National Department of Infrastructure and Transportation (Licensing of Highway BR-319) (Brazil, Amazonas Federal Court)

Germany: Misleading Advertisement Claim Against Barilla Deutschland GmBh

The lawsuit is directed against the company “Barilla Deutschland GmbH.” The company is accused of making misleading advertising claims that one of its products (“WASA”) is CO2-neutral. Deutsche Umwelthilfe v. Barilla Deutschland GmbH (Germany, Regional Court of Cologne)

Germany: Distributor of Apple Watches Accused of Misleading Advertisement

The lawsuit is directed against Apple Distribution International Ltd. The company is accused of promoting three models of its Apple Watch as “CO2-neutral.” The company states that the CO2 emissions caused by the production of these watches are offset by compensation projects. However, Apple largely leaves unclear which projects these are. Moreover, it is not evident whether the compensation projects will actually be operated for the entire period during which the emitted fossil carbon remains in the atmosphere. Deutsche Umwelthilfe v. Apple Distribution International Ltd. (Germany, Regional Court of Frankfurt am Main)