November 2024 Updates to the Climate Case Charts

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

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #188:

FEATURED CASE

California Trial Court Has Specific Jurisdiction over Fossil Fuel Defendants in Climate Cases

In nine climate change actions brought by the California Attorney General and eight local government entities, a California Superior Court denied fossil fuel industry defendants’ motions to dismiss the cases for lack of personal jurisdiction. The court concluded that the moving defendants were subject to specific jurisdiction in California because the plaintiffs’ claims arose out of or related to the companies’ “extensive contacts” with California, which included sale and promotion of fossil fuel products in California and the defendants’ allegedly deceptive statements regarding climate change. The court further found that the plaintiffs, which were “California residents,” alleged that they suffered harms in California as a result of the defendants’ actions. The court also noted that every other court that had considered personal jurisdiction in climate change cases against fossil fuel companies had reached the same conclusion, citing decisions in Colorado, Connecticut, Delaware, Hawaii, and Massachusetts. The court further found that the defendants “do not present a compelling case” that exercising specific jurisdiction would be unfair or unjust. The court stated that the defendants’ arguments regarding unfairness created by litigation in multiple jurisdictions across the country “appear[ed] to conflate personal jurisdiction with subject-matter jurisdiction.” The court also rejected the argument that it must undertake a “claim-by-claim analysis” of the lawsuits to determine whether there was specific jurisdiction over each claim. In re Fuel Industry Climate Cases, No. CJC-24-005310 (Cal. Super. Ct. Oct. 8, 2024)

DECISIONS AND SETTLEMENTS

Supreme Court Declined to Stay EPA Greenhouse Gas Emissions Standards for Power Plants

The U.S. Supreme Court denied eight emergency applications for immediate stay of the U.S. Environmental Protection Agency final rule establishing new greenhouse gas emissions standards and guidelines for new and existing fossil fuel-fired electric generating units. Justice Thomas would have granted the stay. Justice Alito did not participate in the consideration or decision of the applications. Justice Kavanaugh, joined by Justice Gorsuch, wrote a statement indicating that in his view, “the applicants have shown a strong likelihood of success on the merits as to at least some of their challenges” but that they were unlikely to suffer irreparable harm before the D.C. Circuit decided the merits because compliance work was not required until June 2025. West Virginia v. EPA, Nos. 24A95, 24A96, 24A97, 24A98, 24A105, 24A106, 24A116, 24A117 (U.S. Oct. 16, 2024)

Hawai‘i Supreme Court Held that Greenhouse Gas Emissions Fell Within Insurance Policies’ Pollution Exclusions

In a fossil fuel company’s lawsuit seeking to compel two insurers to defend and indemnify it in climate change lawsuits brought by the City and County of Honolulu and the County of Maui, the Hawai‘i Supreme Court ruled that greenhouse gases were “pollutants” under the insurance policies’ pollution exclusion clauses. The court concluded that “[t]he exclusion bars coverage for emitting (or misleading the public about emitting) GHGs.” The court also held that an “accident” would include an insured’s reckless conduct. The Hawai‘i Supreme Court made these rulings in response to the certification of questions by the federal district court for the District of Hawai‘i. Aloha Petroleum, Ltd. v. National Union Fire Insurance Co. of Pittsburgh, No. SCCQ-23-0000515 (Haw. Oct. 7, 2024)

Maryland Federal Court Allowed Biological Opinion for Gulf of Mexico Oil and Gas Activities to Stay in Effect Until May 2025

The federal district court for the District of Maryland extended the effective date of its August 2024 vacatur of the biological opinion for federally regulated oil and gas program activities in the Gulf of Mexico from December 20, 2024 to May 21, 2025. American Petroleum Institute and other intervenor-defendants had filed an emergency motion either to alter or amend the court’s August 2024 judgment or for a stay pending appeal. They argued that vacatur would have “disastrous consequences,” including serious curtailment or halting of Gulf of Mexico oil and gas production as well as prevention of activities that ensure safety and protect the environment. The National Marine Fisheries Service also filed a motion to alter or amend the judgment, telling the court that it would not be able to complete its ongoing consultation under the Endangered Species Act by December 20, 2024 and that vacatur of the biological opinion on that date “will result in substantial disruption to ongoing permitted activities across the Gulf of Mexico with potential knock-on effects to domestic energy production and species conservation.” The defendants must provide status reports every 60 days. Sierra Club v. National Marine Fisheries Service, No. 8:20-cv-03060 (D. Md. Oct. 21, 2024)

Federal Court Said SEC Properly Withheld Certain Information Related to Climate Change Rulemaking

The federal district court for the District of Columbia upheld the Securities and Exchange Commission’s (SEC’s) determinations that certain information was exempt from disclosure in response to a Freedom of Information Act (FOIA) request seeking records related to the SEC’s conversations and correspondence with two outside parties in connection with its climate change disclosure rulemaking. The FOIA request sought communications between SEC Senior Counsel for Climate and ESG and a climate management and accounting platform company and a sustainability consultancy firm. The court found that the SEC showed that certain records were exempt under FOIA Exemption 4 for “trade secrets and commercial or financial information obtained from a person” that is “privileged or confidential.” The court also found that the SEC justified the withholding of other materials under Exemption 5 through the deliberative process privilege. The court concluded that the deliberations in the withheld materials were predecisional because they occurred before the SEC issued proposed rules in March and May 2022 and that it was clear that the withheld information was “part of the agency give-and-take by which the agency decisions regarding the proposed rules were made.” For both sets of withheld documents, the court found that the SEC sufficiently explained how disclosure would result in foreseeable harm. Energy Policy Advocates v. Securities & Exchange Commission, No. 23-cv-507 (D.D.C. Oct. 17, 2024)

Colorado Federal Court Said Corps of Engineers Failed to Consider Climate Change Impact on Precipitation When It Issued Permit for Dam Expansion Project

The federal district court for the District of Colorado ruled that the U.S. Army Corps of Engineers violated the Clean Water Act and the National Environmental Policy Act (NEPA) when the Corps issued a dredge-and-fill permit to the Denver municipal water entity for expansion of the Gross Dam and Reservoir. The court found that the Corps did not demonstrate that the project was the “least environmentally damaging practicable alternative” (LEDPA), including because the Corps ignored foreseeable effects of climate change on precipitation. The court wrote that “despite acknowledging that future climate conditions might neuter the Gross Dam’s value as a water storage solution, the Corps expressly declined to attempt to quantify the impacts of climate change—or even provide an educated guess, for purposes of discussion”—which the court said “proves fatal” to the LEDPA finding because “if the Gross Reservoir has no extra water to impound, or that water is lost to the sun or flora, the Proposed Action cannot possibly be practicable in a logistical sense.” Under NEPA, the court found that the Corps improperly merged “two conceptually distinct project purposes” and also failed to take a hard look at relevant issues, including climate change. The court said the Corps’ “refusal to provide even an estimate on future hydrology is indefensible, an abject violation of NEPA.” The court was not persuaded by the respondents’ contention that uncertainty justified the lack of consideration to climate impacts on precipitation. The court said that even if NEPA did not require quantification of such impacts, the Corps was “at least” obligated to “consider whether the practicability of a given alternative would change if the negative consequences identified in its qualitative analysis came to pass.” The court rejected a claim that the U.S. Fish and Wildlife Service violated the Endangered Species Act and deferred a final ruling on a specific remedy until after submission of further briefing. Save the Colorado v. Semonite, No. 1:18-cv-03258 (D. Colo. Oct. 16, 2024)

Hilcorp Energy to Pay $9.4 Million Penalty and Accelerate Installation of Pollution Control Equipment on Tribal Lands in New Mexico

The U.S. Department of Justice, EPA, and the New Mexico Environment Department announced the lodging of a proposed consent decree to resolve alleged Clean Air Act violations by Hilcorp Energy Company at its oil and gas production operations in New Mexico. The complaint alleged that Hilcorp vented excess emissions of more than 500 tons of volatile organic compounds and more than 1,200 tons of methane when it conducted well completion operations and flowbacks at at least 145 wells in Rio Arriba County and San Juan County. The agencies said that the settlement was part of EPA’s Mitigating Climate Change National Enforcement and Compliance Initiative and that this case was the first to address violations of the Clean Air Act New Source Performance Standards covering well completions following hydraulic fracturing. The consent decree requires payment of a $9.4 million civil penalty, with $4.7 million going to the U.S. and $4.7 million to New Mexico. The consent decree also imposes compliance requirements and the retaining of an independent third-party verifier to conduct a compliance verification program. Hilcorp also must implement an Environmental Mitigation Project that involves replacement of old process control equipment at facilities on Tribal lands on a faster timeline than would be required under federal regulations. Hilcorp also must fulfill reporting requirements. United States v. Hilcorp Energy Co., No. 1:24-cv-01055 (D.N.M. Oct. 17, 2024)

California Court Found Problems with Climate Analysis for Off-Highway Vehicle Networks in Western Mojave Desert

The federal district court for the Northern District of California ruled that the U.S. Bureau of Land Management’s (BLM’s) approval of land management plans designating route networks for off-highway vehicles (OHVs) in the Western Mojave Desert did not comply with the Endangered Species Act, Federal Land Policy and Management Act, and NEPA in some respects. Among the claims addressed by the court were challenges to the assessment of greenhouse gas emissions in the final supplemental environmental impact statement. The court rejected a contention that BLM excluded greenhouse gases from its air quality report, finding that the report did address greenhouse gases and only excluded greenhouse gases not attributable to the OHV route network. The court also found that BLM appropriately incorporated climate modeling for a broader area that included the Western Mojave planning area. The court agreed with the plaintiffs, however, that BLM failed to analyze greenhouse gas impacts among alternatives. The court also found that a “no population growth” assumption that impacted the greenhouse gas analysis was unsupported and arbitrary and capricious. Center for Biological Diversity v. Culver, No. 21-cv-07171 (N.D. Cal. Oct. 15, 2024)

Fourth Circuit Declined to Enjoin Development in “Flood-Prone” Area of Charleston

The Fourth Circuit Court of Appeals denied environmental organizations’ motion for an injunction pending their appeal of a district court’s denial of a preliminary injunction to block a developer from proceeding with a multi-use project in an area in the City of Charleston and Berkeley County, South Carolina where plaintiffs alleged coastal flooding was a major problem. The plaintiffs argued that the district court failed to consider risks from flooding and sea level rise posed by the development’s placement of “thousands of new homes in a low-lying, flood-prone area.” South Carolina Coastal Conservation League v. U.S. Army Corps of Engineers, No. 2:22-cv-02727 (D.S.C. Oct. 8, 2024)

California Appellate Court Rejected Challenge to Inclusion of Carbon Credit Program in EIR for Luxury Development in Undeveloped Area, Found Wildfire Risk Discussion Inadequate

In environmental organizations’ appeal of a trial court decision rejecting most of their challenges to Lake County’s environmental review of the Guenoc Valley Mixed-Use Planned Development Project, the California Court of Appeal found that the County’s final environmental impact report (final EIR) for the project failed to provide “meaningful information” regarding the project’s “potential impact of exacerbating wildfire ignitions.” The court described the project as “a luxury resort consisting of residential estate villas, hotel units, and related infrastructure, on 16,000 acres in an unincorporated and largely undeveloped area.” The appellate court rejected the organizations’ other arguments, including a challenge to the inclusion of a carbon credit program to mitigate the project’s greenhouse gas emissions. The organizations—which had urged the County to “consider the use of a legally adequate carbon offset program”—argued that the program in the final EIR was ineffective, improperly deferred, and unenforceable. The appellate court found that the County did not rely on the credit program to eliminate the project’s impacts, noting that it had been explained that the program “would not avert the project’s significant and unavoidable impact from GHG emissions,” given the limited supply of carbon offsets and uncertainty regarding their availability throughout the life of the project. The court rejected the contention that the California Environmental Quality Act bars consideration of “potentially beneficial measures that agencies deem too uncertain to be feasible.” The appellate court also noted that the petitioners had not argued that the credit program would result in adverse impacts. The court therefore concluded that the addition of the program to the final EIR would not constitute prejudicial error. People ex rel. Bonta v. County of Lake, No. A165677 (Cal. Ct. App. Oct. 23, 2024).

Wisconsin Appellate Court Rejected Challenge to Authorization for Natural Gas-Fired Power Plant

The Wisconsin Court of Appeals upheld a Certificate of Public Convenience and Necessity (CPCN) granted for construction of the Nemadji Trail Energy Center (NTEC), a natural gas-fired electric generating facility. The court found that the Commission did not err in not assigning a burden of proof to the applicants or in its understanding that its decision would have to survive review under a “substantial evidence” standard. The court also found that the Commission correctly interpreted the statutory standards that applied to its determinations and that substantial evidence supported its findings. In addition, the Court of Appeals found that the Commission reasonably determined under Wisconsin’s Energy Priorities Law that “higher priority” renewable sources were intermittent and that “lower priority” energy sources such as NTEC were needed “to complement and sustain” the higher-priority resources. The court also rejected the claim that the environmental impact statement for the project did not sufficiently address greenhouse gas emissions, including indirect impacts from hydraulic fracturing. Clean Wisconsin, Inc. v. Public Service Commission of Wisconsin, Nos. 2022AP1106, 2023AP120 (Wis. Ct. App. Oct. 8, 2024)

New York Court Said Challenge to Congestion Pricing Pause Could Proceed

A New York Supreme Court denied New York State Governor Kathy Hochul and other State respondents’ motions to dismiss lawsuits challenging the Governor’s decision to pause a congestion pricing plan for Manhattan’s Central Business District (CBD). The court found that petitioners who lived in the CBD had standing for their claim under the New York State Constitution’s Environmental Rights Amendment and that the challenges to Governor Hochul’s action were ripe, rejecting the respondents’ contention that there had been no final determination. The court also found that petitioners made “a more than plausible argument” that the New York State Department of Transportation’s execution of a Tolling Agreement—which was a condition precedent to implementing the congestion pricing plan—was ministerial, not discretionary. Riders Alliance v. Hochul, No. 156711/2024 (N.Y. Sup. Ct. Sept. 30, 2024)

NEW CASES, MOTIONS, AND OTHER FILINGS

Organizations Said Environmental Review of License Renewal for Nuclear Plants Violated NEPA

Beyond Nuclear and Sierra Club filed a petition for review in the D.C. Circuit Court of Appeals challenging the U.S. Nuclear Regulatory Commission (NRC) final rule and guidance on “Reviewing Nuclear Power Plant Operating Licenses – Environmental Review.” The organizations alleged that the rule violated the National Environmental Policy Act and Administrative Procedure Act by making the conclusions of the generic environmental impact statement (GEIS) for renewal of nuclear power plant licenses binding on NRC license renewal proceedings. The organizations asserted that the GEIS’s analyses of the environmental impacts of reactor license renewal were “irrational, unreasonable, incomplete, unsupported, and arbitrary and capricious.” The organizations’ comments on the draft GEIS contended that the GEIS was deficient because, among other reasons, it did not consider effects of climate change on accident risk, “a new and fast-developing issue.” Beyond Nuclear, Inc. v. U.S. Nuclear Regulatory Commission, No. 24-1318 (D.C. Cir., filed Oct. 7, 2024)

Multnomah County Added Gas Company and Alleged Front Group as Defendants in Climate Suit

Multnomah County filed an amended complaint in its climate change suit against fossil fuel companies and other defendants. The County added two new defendants: (1) Northwest Natural Gas Company, “the largest provider of gas to Western Oregon and Southwest Washington,” and (2) Oregon Institute of Science and Medicine, which the amended complaint alleged was a front group “engaged in a climate deception/misinformation campaign in Oregon to continue to further the business objectives of its carbon polluting funders.” County of Multnomah v. Exxon Mobil Corp., No. 23CV25164 (Or. Cir. Ct. Oct. 7, 2024)

States Challenged Federal Energy Conservation Standards for Consumer Cooking Products

Mississippi and six other states filed a petition for review in the Fifth Circuit Court of Appeals challenging the U.S. Department of Energy’s “Energy Conservation Standards for Consumer Conventional Cooking Products.” The petition did not set forth the states’ arguments, but part of DOE’s evaluation of the standards included consideration of their climate change benefits. Mississippi v. U.S. Department of Energy, No. 24-60529 (5th Cir., filed Oct. 14, 2024)

Challenge to Maryland Offshore Wind Project Alleged Failure to Consider Climate Impacts

Plaintiffs filed a lawsuit challenging federal approvals for the Construction and Operations Plan for the Maryland Offshore Wind Project. The plaintiffs included local governments in Maryland and Delaware, owners of tourism-oriented businesses, a community association, and plaintiffs representing commercial and recreational fishing interests. The plaintiffs asserted that the federal defendants violated the Administrative Procedure Act, NEPA, the Endangered Species Act, the Marine Mammal Protection Act, the Migratory Bird Treaty Act, the Coastal Zone Management Act, and the National Historic Preservation Act. The alleged NEPA violations included failure to adequately analyze climate change effects of constructing and operating the project. The plaintiffs alleged that the Bureau of Ocean Energy Management (BOEM) failed to analyze supply chain emissions and also alleged that BOEM failed to compare the project’s impacts with the impacts of alternative renewable energy sources or alternative locations and designs. In addition, they alleged a failure to conduct “cumulative-level analysis of climate impacts (positive or negative) associated with the proposed scale of offshore wind development.” Mayor & City Council of Ocean City v. U.S. Department of the Interior, No. 1:24-cv-03111 (D. Md., filed Oct. 25, 2024)

Trade Associations, Gas Company, and Unions Challenged Maryland County’s Ban on Gas Appliances

A lawsuit filed in the federal district court for the District of Maryland challenged Montgomery County’s local law banning use of gas appliances in new construction. The plaintiffs—who described themselves as “a group of trade associations, companies, and unions that rely on the availability of gas appliances and systems for their livelihoods”—asserted that the Energy Policy and Conservation Act (EPCA) preempted the gas appliance ban. They asked the court for a permanent injunction enjoining enforcement of the ban and a declaration that the ban was preempted by federal law because it concerns energy use of appliances covered by EPCA. National Association of Home Builders of the United States v. Montgomery County, No. 8:24-cv-03024 (D. Md., filed Oct. 17, 2024)

Plaintiffs Said NEPA Review for Ohio River Bridge and Highway Project Failed to Adequately Consider Climate Change

Four local groups filed a lawsuit in the federal district court for the Southern District of Ohio challenging the Federal Highway Administration’s NEPA review for the Brent Spence Bridge Corridor Project, a bridge and highway project. The project involved constructing a new bridge west of the existing Brent Spence Bridge, which crosses the Ohio River between Cincinnati and Covington, Kentucky, as well reconfiguration of the existing bridge, addition of collector-distributor lanes, extension of frontage roads, and rebuilding of overpass bridges and interchanges. The plaintiffs alleged that the Revised Supplemental Environmental Assessment and Finding of No Significant Impact for the project did not give adequate consideration to significant impacts. The defects alleged by the plaintiffs included failing to reasonable address greenhouse gas emissions from “the huge amount of induced traffic resulting from the Project’s added capacity” and failing to mention emissions from construction. Devou Good Project, Inc. v. U.S. Department of Transportation, No. 1:24-cv-00585 (S.D. Ohio, filed Oct. 15, 2024)

Environmental Groups Challenged NEPA Review for New Gas Plant in Tennessee

Three environmental organizations filed a lawsuit in the federal district court for the Eastern District of Tennessee alleging that Tennessee Valley Authority (TVA) failed to comply with the Administrative Procedure Act and NEPA when it decided to build a gas-fired power plant to replace a coal-fired plant in East Tennessee. The plaintiffs alleged that TVA failed to consider a reasonable range of alternatives that included alternatives containing a substantial renewable component. They also alleged that TVA failed to take a hard look at the proposed gas plant’s environmental impacts, including impacts on climate pollution. In addition, they claimed that TVA committed to the gas plant before issuing a record of decision and made an arbitrary finding that the gas plant was the “lowest system cost” alternative. Appalachian Voices v. Tennessee Valley Authority, No. 3:24-cv-00411 (E.D. Tenn., filed Oct. 10, 2024)

New Lawsuit Said California’s Advanced Clean Fleets Regulations Was Preempted and Unconstitutional

A new lawsuit challenging California’s Advanced Clean Fleets Regulations was filed in the federal district court for the Eastern District of California by two trade groups. One trade group represents companies in the “specialty automotive aftermarket industry”; the other represents companies that manufacture, distribute, and use “work trucks.” The trade groups contend that the suit is ripe even though the California Air Resources Board (CARB) has announced an enforcement stay. They assert that the Clean Air Act and Federal Aviation Administration Authorization Act of 1994 preempt the regulations, that the regulations violate the dormant Commerce Clause, that the regulations violate a state law barring CARB from banning an entire category of vehicle, and that they violate equal protection and due process under the U.S. and California constitutions. Specialty Equipment Market Association & Performance Racing, Inc. v. California Air Resources Board, No. 2:24-cv-02771 (E.D. Cal., filed Oct. 8, 2024)

Gas Company Customers Said Carbon Offset Program Was Deceptive

Two customers of a natural gas company in Oregon filed a class action lawsuit in Oregon Circuit Court alleging that the company misrepresented the “Smart Energy” program in which they enrolled. They alleged that the company told customers that it would completely offset the carbon emissions attributable to the monthly natural gas use of customers enrolled in the Smart Energy program, for which customers pay extra. The plaintiffs further alleged that the company used the Smart Energy funds to purchase “offsets” from manure digesters at industrial dairies that “lack the core attributes of a bona fide offset: additionality, uniqueness, measurability, verifiability, and permanency.” Other allegedly deceptive actions included use of Smart Energy funds to pay the program’s marketing and administration costs. The customers also alleged that the company potentially used offsets for compliance requirements. They asserted that the company violated the Oregon Unlawful Trade Practices Act and also asserted a breach of contract claim. They requested injunctive and equitable relief, statutory and actual damages, and attorney fees. Blumm v. Northwest Natural Gas Co., No. 24CV48490 (Or. Cir. Ct., filed Oct. 9, 2024)

Lawsuit Said CEQA Review for Master Planned Community Failed to Adequately Address Greenhouse Gas Impacts

Petitioners filed a lawsuit in California Superior Court challenging the approval of the Rio Vista Specific Plan in the City of Jurupa Valley. The project would be a phased master planned community on 917.3 acres. The petitioners alleged that the environmental impact report prepared under the California Environmental Quality Act (CEQA) failed to adequately address the project’s impacts, including by failing to include all greenhouse gas emissions resulting from the project; relying on greenhouse gas mitigation measures that are vague, ineffective, deferred, and/or unenforceable; and failing to incorporate all feasible greenhouse gas mitigation and avoidance measures. Center for Biological Diversity v. City of Jurupa Valley, No. CVRI2405646 (Cal. Super. Ct., filed Oct. 4, 2024)

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

HIGHLIGHTED CASE

Canada: Court Referred Youth Case Back for Merits Decision

Seven youth plaintiffs brought suit alleging that Ontario violated the Canadian Charter of Rights and Freedom by abdicating its responsibility to address climate change. Plaintiffs argue that Ontario has failed to meet the challenge of avoiding catastrophic climate change, which must be done within eleven years, according to the scientific community. They further claim that Canada is not on track to meet the goals laid out in the Paris Agreement, in large part due to Ontario’s 2030 greenhouse gas reduction target of 30% below 2005 levels, set under the Cap and Trade Cancellation Act, 2018. In plaintiffs’ view, this target -- which is less ambitious than previously adopted targets -- is inadequate. Plaintiffs assert a genuine interest in preventing catastrophic climate change that poses pervasive and serious risks to the health and well-being of their generation and future generations of Ontarians. Their claims arise under sections 7 and 15 of the Charter, which provide the right to life, liberty and security of the person; and equal protection under the law, respectively.

The defendants filed a motion to dismiss on April 15, arguing that the Charter does not guarantee a right to a stable climate, the plaintiffs lack standing to represent future generations, the plaintiffs have shown no reasonable cause of action, and the plaintiffs cannot prove their allegations. After a full hearing before the court, the Ontario Superior Court dismissed the case on April 14, 2023 on the grounds that the plaintiffs did not establish any violation of sections 7 and/or 15 of the Charter.

In May 2023, the plaintiffs appealed the case to the Court of Appeal for Ontario. In January 2024, the Court of Appeal heard the appeal of the Ontario Superior Court’s dismissal of the application. On October 17, 2024, the Court of Appeal released its decision, allowing the appeal and referring the matter back to the application judge for redetermination. This unanimous decision found that the application judge erred in framing the request as a “positive rights” case seeking to impose freestanding obligations on Ontario, and that this error skewed the judge’s entire analysis. The Court of Appeal found that by enacting the Cap and Trade Cancellation Act, 2018, S.O. 2018, c. 13, the Ontario government voluntarily assumed a positive statutory obligation to combat climate change in a Charter-compliant way. The matter was remitted back to the application judge for consideration. Significantly, the Court of Appeal invited the applicants to amend their application to incorporate intervenor arguments and adduce further evidence to this effect. Mathur, et al. v. Her Majesty the Queen in Right of Ontario (Canada, Ontario Court of Appeal)

DECISIONS & SETTLEMENTS

South Korea: Framework Act on Carbon Neutrality and Green Growth Found to Violate the Right to Healthy Environment Under Constitution

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 under protecting their basic rights and are violating their equal rights.

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. 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)

Argentina: Court Dismissed Amparo Action Challenging Deforestation and Land Clearance Activities in Jujuy Province

In 2022, the Municipality of Yala filed an amparo action challenging deforestation and land clearance activities in the Jujuy Province. The plaintiff alleged that the activities disrupted the natural flow of the Yala River, affecting the surrounding environment and the local community, and asked for the recomposition of the area.

On March 14, 2024, the Court rejected the amparo, but suggested the defendants to reforest the area anyway. Furthermore, it was observed that the municipality had not enacted any territorial planning that included climate change considerations and that the new Provincial Constitution demands municipalities to enact Urban and Territorial Planning Codes considering adaptation and mitigation to climate change. The Court stated that: “Environmental and climate variables must be included in participative territorial planning of Municipalities, and its importance as a crucial tool in the adaptation strategy to climate change cannot be overlooked.” Consequently, the Court asked the municipality (the plaintiff) to take measures to integrate climate and environmental variables into its territorial planning. Municipality of Yala c/ Guerrero C. y Echeverría M. (Argentina, Environmental Court of the Province of Jujuy)

Argentina: Court of Appeal Upheld Decision Ordering Province of Santa Fe to Provide Strategic Plan For Sustainable Use of Aquatic Resources

In 2020, a group of individuals and NGOs filed two similar claims against the Province of Santa Fe, challenging its management of fishing activities in the face of a critical lowering of the Paraná River levels. Together with a precautionary measure, the plaintiffs asked the judge to order the Province to elaborate an integral and participative Plan to protect the river basin’s aquatic fauna and fish resources. Although the claim made only a passing reference to climate change to highlight the increasing pressure that the aquatic fauna is suffering and will suffer due to climatic changes, the Public Prosecutor introduced a climate focus to the case. On May 31, 2021, the Public Prosecution Office intervened in the case as a party, supporting the plaintiffs’ stance and asking for new remedies from the judge. Among other arguments, the Prosecutor observed that the second Argentinean NDC had identified the “extraordinarily low water levels in the rivers” causing problems to “subsistence fishermen…” as a climate risk for the Santa Fe region and referred to the IPCC reports and the Paris Agreement to allege the need for public authorities to implement climate adaptation measures, including the need of livelihood diversification of vulnerable groups. According to the Prosecutor, in this case, this was connected to the effective functioning and implementation of two institutional mechanisms: the Provincial Reconversion Council and the Fishery Reconversion and Fishermen’s Assistance Fund. The Prosecutor observed that these two mechanisms, which were not currently functioning, had been created with aims that ‘certainly constitute climate adaptation measures’ to protect vulnerable groups of fishermen in the region. In this sense, the Prosecutor maintained that their “implementation is an urgent tool for a satisfactory solution to the socio-environmental conflict suffered by the fishermen of Santa Fe and the ecosystem of the Paraná River, not only in terms of the current low water levels, but also those that will continue to occur due to climate change.”

On June 22, 2023, the Court ruled in favor of the plaintiffs and, among other measures, ordered the Province to elaborate an integral, informed, public, and participative “Strategic Plan for the sustainable use of the aquatic resources.” Even though the Court avoided mentioning climate change or climate adaptation in its judgment, it engaged with and sustained the Public Prosecutor’s arguments regarding the need to implement both the Provincial Reconversion Council and the Fishery Reconversion and Fishermen’s Assistance Fund in order to allow for the “reconversion, adaptation, and diversification of the fishing activity and its social actors, with the clear objective of cushioning the impact that possible situations of closure or restrictions to the activity resulting from environmental crises could have on their economies.”  The Province of Santa Fe has appealed the judgment.

On April 23, 2024, the Court of Appeal upheld the decision of the District Court. The Province of Santa Fe decided not to appeal. Bartoli, Jorge et al v. Santa Fe Province (Argentina, Civil and Commercial District Court Nº 11(Rosario))

Argentina: Court of Appeal Accepts Amicus Brief of Fundación Ambiente y Recursos Naturales

On April 9, 2018, OIKOS Red Ambiental (an ENGO) filed a claim challenging the constitutionality of Decree Nº 248/2018 of the Provincial Ministry of Economy, Infrastructure and Energy, which regulates the procedure of authorization of fracking activities. Among other arguments, the plaintiff alleged irregularities in the process through which the Decree was enacted (failure to take into consideration public participation) and that the Decree would allow, as part of the consented fracking activities, excessive and illegal consumption of water, which is a scarce and specially protected resource in the Province. Furthermore, the plaintiff warned about the potential use of products with radioactive content in the fracking operations and the underestimation of risks related to volcanoes located in the Province. Different legal grounds are used by OIKOS, including the constitutional right to a healthy environment (Article 41 of the National Constitution), the General Law of the Environment (Act 25.675), the Hazardous Waste National Act (Act 24.051), environmental principles (progressivity, prevention, precaution, intergenerational equity), the Mendoza Constitution and the provincial environmental act (Act 5691). Climate change is only a passing reference in the lawsuit, which merely mentioned the UNFCCC to refer to the precautionary principle.

Concerns and arguments related to the climate impact of fracking activities were brought in the case through three amicus curiae filed by the Fundación Ambiente y Recursos Naturales (FARN, December 2020), EarthJustice (January 2021) and the International Association for Environmental Defense (AIDA, February 2021). In these submissions, among other concerns, the ENGOs highlighted the climate impacts of fossil fuel production (both CO2 emissions of future combustion and CH4 leaks) and alleged that those impacts were not duly considered when making the decision (cost-benefit analysis) and that they could imply a breach in Argentina’s international commitments. AIDA’s submission also observed that, in October 2018, the UN Committee on Economic, Social and Cultural Rights recommended Argentina to reconsider the exploitation of Vaca Muerta’s oil and gas reserves in light of the climate commitments under the Paris Agreement and the scarcity of the global carbon budget.

In 2023, the Centro de Estudios Legales y Sociales (CELS), the Center for International Environmental Law (CIEL); and the Environmental Law Alliance Worldwide (ELAW USA) also presented amici curiae. On August 26, 2024, the Mendoza Supreme Court accepted the amicus brief submitted by Fundación Ambiente y Recursos Naturales (FARN, December 2020) and rejected the rest of them. The Court considered that the rejected amici curiae were not contributions of legal or substantive value for the case at stake. OIKOS Red Ambiental v. Mendoza Province (Argentina, Supreme Court of Mendoza Province)

Argentina: Court of Appeal Rejected Appeals to Reinstate Injunction that Halted Offshore Fossil Fuel Exploration

On December 30, 2021, the Ministry of Environment and Sustainable Development published Resolution 436/2021, approving the implementation of an offshore seismic acquisition project submitted by the Norwegian company Equinor. This approval of offshore fossil fuel exploration resulted in several lawsuits seeking an injunction to halt the project and an order declaring the approval’s regulations null and void. Some of those lawsuits are partially grounded in climate concerns.

Three actions were filed in relation to this development:

• On January 7, 2022, the NGO ‘Organización de Ambientalistas Organizados’ sued the Ministry of Environment and Sustainable Development for its approval of the offshore exploration activities. Initially, the claim was presented as a habeas corpus for the protection of the Southern Right Whale and its habitats, but after the dismissal of the claim by the Federal Court, the Court of Appeal admitted it and asked for its conversion into a constitutional collective action (amparo ambiental colectivo). The main focus of the new claim remained the protection of the Southern Right Whale, but also introduced concerns regarding the climate impacts of the project. On these issues, the lawsuit refers to the urgency raised by the IPCC reports, the project’s incompatibility with the available carbon budget (citing the 2021 International Energy Agency reports), the Argentinian NDC, and, more generally, the Paris Agreement and Sustainable Development Goals.
• On January 13, 2022, a group of NGOs filed a constitutional collective action (amparo colectivo ambiental) against the Argentinian National State and the Ministry of Environment and Sustainable Development for its approval of the offshore exploration activities. This case presents the climate impacts of the projects as the main grounds for its claims. Among others, plaintiffs mention that the project breaches national and international climate commitments and affects intergenerational equity, that the NDC to the Paris Agreement is insufficient, that the State is responsible not only for emissions within its territory but also for emissions arising from future fossil fuels exports, and that the Environmental Impact Assessment is flawed because it did not consider climate impacts. Notably, this claim refers to high-profile climate cases in other jurisdictions, like Urgenda (the Netherlands), Neubauer (Germany), Sharma (Australia); Earthlife Africa Johannesburg (South Africa); Gray and Gloucester Resources (Australia) and Greenpeace Nordic (Norway).
• Also on January 13, 2022, the Mayor of the City of Mar del Plata filed a constitutional collective action (amparo colectivo ambiental) against the Ministry of Environment and Sustainable Development for its approval of the offshore exploration activities. Among other concerns regarding access to environmental information and participation in the decision making-process (citing the Escazú Agreement), the claim mentions that the project undermines Argentina’s international climate commitments (UNFCCC, Paris Agreement, and NDC to the Paris Agreement), that the NDC is not sufficiently ambitious, that the National Adaptation and Mitigation Plan is missing, and that, ultimately, there is regulatory incoherence between the project and the climate pledges.

On January 14, 2022, all three climate lawsuits against the offshore exploration activities (together with other non-climate related cases) were combined, and the Court will hand down a single judgment for all.

On December 27, 2023, the Federal Court rejected the precautionary measures requested by Greenpeace et al. The Court found that halting an exploratory activity is, at this point, excessive and premature. Notwithstanding this, the Court, in response to the Prosecutor’s concerns, asked the State to inform about its mitigation goals, the compatibility of the exploration and exploitation projects with those goals, and how this issue was dealt with in the environmental impact statement. On February 7, 2024, the plaintiffs and the Public Prosecutor appealed. These appeals were rejected by the Court of Appeal on May 10, 2024.

On March 14, 2024, the defendants —corporations and the National State— submitted their written replies to the complaint. Among other arguments, the State argued that the fossil fuel development will bring the wealth needed for the transformation of Argentina’s energy matrix. In its reply, the State alleged to have answered the Court’s petition for information. Greenpeace Argentina et. al., v. Argentina et. al., Organización de Ambientalistas Organizados v. Ministry of Environment and Sustainable Development and Guillermo Tristan Montenegro v. Ministry of Environment and Sustainable Development (Argentina, Federal Court of Mar del Plata N. 2)

Permanent Court of Arbitration:  Arbitral Award Issued Holding that Poland Violated Obligations Regarding GreenX’s Jan Karski Project in Lubin Province

In 2020, GreenX Metals Limited (formerly Prairie Mining Limited), an Australian mining company, initiated arbitration proceedings against Poland. The claim was filed under the Energy Charter Treaty (ECT) and the bilateral investment treaty (BIT) between Poland and Australia. GreenX Metals alleges that Polish authorities have unfairly obstructed the development of its two coal-mining projects (i.e., Jan Karski and Debiensko), seeking over USD 1 billion in damages.

On October 8, 2024, the arbitral tribunal issued its award under UNCITRAL rules, determining that Poland had violated its obligations regarding GreenX’s Jan Karski project in Lublin province by failing to grant a mining concession and instead awarding it to a local competitor (violation of the NT standard). However, the tribunal rejected GreenX’s claims related to the Dębieńsko project. The tribunal, comprising Klaus Sachs (Germany, presiding), Brigitte Stern (France), and Peter Rees (England), awarded GreenX £252 million (A$490 million) under the BIT and £183 million (A$355 million) under the ECT. GreenX Metals Limited (formerly Prairie Mining Limited) v. Republic of Poland (Permanent Court of Arbitration)

Bulgaria: Decision Renewing Integrated Permit for Operation of Thermal Power Plant Revoked

This case first began in 2019 after the thermal power plant (TPP) Maritsa-Iztok 2 received its integrated permit for operation renewed indefinitely, allowing the plant to release mercury and sulphur oxides above set emissions limits. The Court of First Instance (Administrative Court Stara Zagora) dismissed the case, stating that there is no violation of the Aarhus Convention, even though the operations of the TPP in question have a transboundary effect. The Court also did not find any violations of the national Code of Administrative Procedure or the European Directives on ambient air quality and industrial emissions.

The Applicants appealed the judgment before the Administrative Court of Cassation (ACC). The ACC requested a preliminary ruling from the Court of Justice of the European Union (CJEU). The ACC found that there is a discrepancy between the update of the plan for the management of ambient air quality in the municipality of Galabovo, developed for the pollutants: particulate matter (PM10) and sulphur dioxide (SO2) for 2019-2023 and the appealed decision of the Executive Director of the Environment Executive Agency. Namely, the reduced desulphurization rates authorized by the Executive Director in the decision are inconsistent with the minimum desulphurization rate of 98%. Furthermore, the authorized daily and hourly average rates of SO2 are systematically exceeded, which led, inter alia, to the adoption and update of the plan referred to above and gave rise to the bringing of an action for failure to fulfill obligations in Case C‑730/19, Commission v. Bulgaria. The ACC asked the CJEU three questions relating to the obligations of the competent authorities when considering a request for a derogation from the set emission limit values when reissuing integrated permits.

On March 9, 2023, the CJEU gave its judgment on the preliminary ruling. The CJEU found that a derogation from the set emission limit values may be granted only if less strict emission limit values do not cause ‘significant pollution’ and, in spite of that derogation, a ‘high level of protection of the environment as a whole’ could be achieved. Moreover, the pollution in excess of the air quality limit values for SO2 in the area of the TPP in question cannot be regarded as insignificant pollution, but could objectively be described as ‘significant pollution’. Thus, a derogation from the set emission limit values could not be granted, if it is such as to contribute to exceeding air quality limit values set by Directive 2008/50 for SO2. Additionally, the competent authority empowered to grant such a derogation must also refrain from setting less strict emission limit values for pollutants originating from an installation where such a derogation would be contrary to the measures established in the air quality plan adopted in the zone concerned. This judgment came in a moment when there was talk in Bulgaria of renegotiating the Recovery Plan, which originally envisioned a 40% reduction in thermal power plant emissions and the introduction of more energy from renewable sources. Even though the judgment considers sulfur emissions, its principles could very well be applied to other pollutants that originate from thermal power plants like Maritsa-Iztok 2.

After the CJEU judgment on the preliminary ruling, the case returned to the Bulgarian ACC, which must decide the case on its merits.

On July 31, 2023, the Administrative Court of Cassation (ACC) issued a judgment, revoking the first-instance judgment of the Administrative Court Stara Zagora, which back in 2019 ruled that the renewal of the integrated permit for operation of the thermal power plant (TPP) Maritsa-Iztok 2, famous for releasing mercury and sulphur oxides above the norms. The ACC finds substantive violations of the rules of Court procedure, committed by the Court of First Instance and thus sends back the case to be examined by another division of the Administrative Court Stara Zagora.

In March 2024, after the second examination of the case by the Administrative Court Stara Zagora, the Court issued a judgment revoking the decision for the renewal of the integrated permit for operation of the TPP. According to the Court, the limit values document must be reissued to comply with the requirements for mercury and sulphur dioxide. The judgment was appealed before the Supreme Administrative Court, which in October 2024 discontinued the case due to technical errors in the first instance judgment. The TPP, whose integrated permit is in dispute, has been receiving a large amount of state aid, without which it would not be able to continue operation due to a sharp decline in profits in the past years and the spike in renewable energy in the country. Association “Za Zemiata (For the Earth) - Access to Justice” and “The Green Tank”, Hellenic Republic v. Executive Director of the Environment Executive Agency, TPP “Maritsa-Iztok 2” EAD (Bulgaria, Administration Court of Cassation)

Brazil: Fine and Compensation Ordered Against Company Due to Burning of Sugarcane Straw During Restricted Period

In September 2009, the São Paulo State Prosecutor’s Office (MPSP) filed a Public Civil Action (CPA) against Usina Mandu S.A. due to the burning of sugarcane straw during a restricted period.

The first instance decision ordered the defendant to compensate for the environmental damage caused by the illegal burning in the amount of R$400,000.00. Both the plaintiff and the defendant appealed the decision. The MPSP sought an increase in the compensation amount, arguing that the burning had degraded air quality, with negative effects on public health and the environment.

In February 2014, after the MPSP filed a motion for the review of the second instance ruling, the dissenting vote in the appellate judgment prevailed. This dissenting vote held that the polluting company should receive an administrative fine and compensate for the damage caused by the illicit burning. In assessing civil liability, it considered the volume of gases released into the atmosphere, determining this by multiplying the area by the duration of the burn. It estimated emissions of 15 tons of CO₂ per hectare over 30 to 60 minutes, which it regarded as the average burn duration. It ruled that the carbon price should be assessed on the carbon market, as provided on São Paulo’s BM&F BOVESPA. The amount was to be determined in an assessment during the liquidation phase. In the liquidation phase, the calculated amount was approved, resulting in a final compensation award of R$215,655.50. MPSP vs. Usina Mandu S.A. (Burning of sugarcane straw) (Brazil, Sao Paulo State Court)

Brazil: Fires Caused by Vegetation Clearance Held Criminal and Fine of R$5,000,000.00 Imposed

In March 2018, Santo Antônio Energia S.A. filed a Claim for the Annulment of an Administrative Act, with a request for injunction, against the State Agency for Environmental Development of Rondônia (SEDAM). The Santo Antônio Hydroelectric Plant (UHE Santo Antônio) operates a large hydroelectric plant located in the Amazon region. Construction activities required the removal of vegetation along the banks of the Madeira River, for which subcontractors were hired. During the vegetation clearance, the Environmental Commission of the Rondônia State Legislative Assembly received complaints that the subcontractors were setting fires in areas of the Santo Antônio and Jirau Hydroelectric Plants. SEDAM issued an infraction notice, alleging that the subcontractors burned 2,280 hectares of vegetation (1,750 hectares belonging to Santo Antônio S.A.) and imposed a fine of R$10,000,000.00. In its claim, the plaintiff asserts that the fires in question were criminal and that it took all necessary preventive measures. It seeks recognition of the statute of limitations or, alternatively, the annulment of the administrative act on the grounds of defects and the absence of elements necessary to establish administrative liability. As an injunction, the company requests the suspension of the enforceability of the fine and an order for SEDAM to refrain from taking any action that would require payment of the fine. On the merits, it requests the annulment of the infraction notice, or alternatively, an adjustment to the applied penalty or reduction of the fine amount.

The state of Rondônia filed a defence contesting the arguments presented in the initial claim and requested that the claim be dismissed. The Court issued a judgment partially upholding the initial claim to adjust the fine to R$5,000,000.00.

Both the plaintiff and the state of Rondônia filed appeals.

On September 22, 2023, the Court dismissed both appeals. The dissenting vote granted the state of Rondônia’s appeal to reinstate the original fine, considering that the amount imposed by SEDAM was reasonable, given that the fire affected 1,750 hectares of the company’s land and lasted for 15 days. It argued that Federal Decree 6,514/2008 states that, when grading the penalty, the extent of the damage and its environmental impact must be taken into account. The dissent emphasized that one hectare of burned forest equates to hundreds of tonnes of CO₂ released into the atmosphere, contributing to Brazil’s high greenhouse gas emissions. It highlighted the provisions of CNJ Resolution 433/2021 and the targets Brazil has committed to under the Paris Agreement. The opinion argued that, given the climate crisis and current regulatory standards, the environmental authority’s discretion to set the amount of fines imposed cannot be restricted. Santo Antônio Energia S.A. vs. SEDAM (Administrative fine for illegal burning) (Brazil, Rondônia State Court)

International Centre for Settlement of Investment Disputes: NAFTA Tribunal Found that Revocation of Mining Rights Around St. Lawrence River Did Not Amount to An Expropriation

In 2013, Lone Pine Resources, a company headquartered in Canada but registered in the US, brought a claim alleging breaches of Article 117 of NAFTA caused by the “the arbitrary, capricious, and illegal revocation of the Enterprise’s valuable right to mine for oil and gas under the St. Lawrence River.” This followed the Quebec Government’s revocation of all permits for oil and gas exploration in the St Lawrence River Basin, which was associated with a moratorium on fracking. The company is seeking compensation both for monies already invested and for anticipated future profits.

On November 21, 2022, the NAFTA tribunal found that revocation of mining rights around the St. Lawrence river did not amount to an expropriation, considering that Claimant retained other mining rights. Tribunal majority also dismisses MST claim.  Lone Pine v. Canada (International Centre for Settlement of Investment Disputes)

France: Appeal Requesting for Examination of Execution of Judgment Ordering Government’s Immediate Actions and Compensation for One-Year Delay in Climate Change Actions

On March 14, 2019, the plaintiffs initiated the lawsuit by filing a “summary request” before the Administrative Court of Paris. The plaintiffs request that the State of France be enjoined to remedy its inadequate action on climate change. Specifically, they request the Court to order France to:

• Take proper measures to reduce greenhouse gas emissions in the atmosphere - in due proportion considering global emissions, and taking into account the particular responsibility accepted by developed countries - at a level compatible with the objective to contain the rise of the average temperature of the planet below the threshold of 1.5 °C compared to pre-industrial levels;
• Take, at least, all necessary measures to achieve France’s targets for reducing greenhouse gas emissions, developing renewable energies and increasing energy efficiency;
• Take the necessary measures to adapt the national territory to the effects of climate change;
• Take the necessary measures to protect citizens’ lives and health from the risks of climate change.

They further request compensation for the damages suffered as a result of the State’s failure to tackle climate change to be paid as “the symbolic sum of 1 euro for their moral prejudice.”

On October 14, 2021, the Administrative Court of Paris ordered the State to take immediate and concrete actions to comply with its commitments to cutting carbon emissions and repair the damages caused by its inaction by December 31, 2022. The Court determined that France emitted 62 million extra tonnes of emissions from 2015-2018, though it lowered the amount to 15 million tonnes, taking into account the drop in emissions in 2020. The Court thus called on France to subtract the emissions caused in excess of its legislative commitments, adding these to the reduction of emissions planned between 2021 and 2022. France has committed to a reduction in GHG emissions of 40 percent by 2030, compared to 1990 levels, and to reaching carbon neutrality by 2050. Any future slippage of emissions beyond the legislative commitments must also be compensated. The Court rejected a request to have France to pay 78 million euros per semester of delay in meeting the emissions goals, and said it is up to the Prime minister and the government to come up with the measures to fix the problem.

In December 2023, the Administrative Court of Paris ruled that the State had complied with the 2021 judgment because the surplus of greenhouse gas emissions had been compensated, albeit with a one-year delay. Therefore, the plaintiff NGOs appealed to the Council of State requesting that it examine the execution of the 2021 ruling in light of these parameters—in line with the renewed condemnation of the State in May 2023.

On May 21, 2024, the plaintiff NGOs submitted their brief to the Council of State. The organizations argue that the Administrative Court of Paris neither took the time nor the resources necessary to properly examine the implementation of the 2021 judgment, denying them the right to a fair trial. Notre Affaire à Tous and Others v. France (France, Administrative Court of Paris)

Ireland: Supreme Court Upheld Decision Determining that Upstream Consequences Not Required In Context of Planning Permission for Construction of Cheese Factory

The appellant sought to challenge the granting of a planning permission by the Irish Planning Board for the construction of a cheese factory. The appellant alleged that the Irish Planning Board had failed to adequately consider the environmental impacts, and in particular, the upstream consequences of the expanded dairy production, following EU law.

The High Court dismissed the appeal because the upstream consequences of the dairy production were sufficiently removed from the individual project. In the Court’s view, this meant that the consequences could not be viewed as being site-specific, meaning it did not have to be considered for the purpose of EU law.

The appellant brought their appeal to the Supreme Court. The Supreme Court upheld the decision of the High Court, determining that the analysis requested by the appellant was more appropriate at a national or sectoral level rather than a site-specific level. Therefore, the upstream consequences did not have to be considered in the context of this site. An Taisce — National Trust for Ireland v an Bord Pleanála, The Minister for Communications, Climate Action and The Environment, Ireland and The Attorney General (Ireland, Supreme Court of Ireland)

Italy: Administrative Supreme Court Upheld Fine Imposed on ENI’s Misleading Advertisement Campaign

On December 20, 2019, the Italian Competition Authority (AGCM) imposed a five million euro fine—the maximum allowable penalty—on ENI, a major Italian oil and gas company, for engaging in “unfair commercial practices regarding environmental claims.” The AGCM found that ENI’s advertising for its Diesel+ fuel misled consumers by associating the product with “green” attributes that were not fully representative of the fuel’s environmental impact. Specifically, the AGCM held that environmental claims in advertising should (i) clearly and accurately reflect the product’s environmental benefits, (ii) be supported by scientific evidence, and (iii) be conveyed without misleading omissions.

ENI’s Diesel+ advertising campaign prominently used a “green” logo alongside the product name, which, according to the AGCM, implied that the environmental benefits applied to the fuel as a whole, when in reality, they were limited to only one component. The Authority determined that this campaign spread “false and omissive information” about Diesel+’s environmental impact, creating a misleading impression of reduced greenhouse gas emissions. As a result, the AGCM concluded that ENI’s campaign constituted an “unfair commercial practice” in violation of Articles 21 and 22 of the Italian Consumer Code, which protect consumers from misleading advertising.

ENI appealed the decision to the Regional Administrative Court of Lazio, which upheld the AGCM’s ruling. However, on April 23, 2024, Italy’s highest administrative court, the Consiglio di Stato, overturned this decision in ENI’s favor. The Consiglio di Stato found that ENI’s advertising did not constitute an unfair commercial practice and ruled the AGCM’s claims unfounded. The court emphasized that “green” claims could be applied to products like diesel fuel, which, despite remaining polluting, could offer relatively lower environmental impacts compared to other products. The court noted that such claims were permissible provided they included “supporting claims”—additional messages or visuals clarifying the product’s limited environmental benefits. This ruling thus established that, within Italy’s regulatory framework, the use of green claims was acceptable for inherently polluting products, provided the claims were contextualized and not misleading in their presentation. Italian Competition Authority Ruling Eni’s Diesel+ Advertising Campaign (Italy, Regional Administrative Court of Lazio)

Japan: Decision Pending for Injunction Against Construction and Operation of Coal-Fired Plant in Kobe

On September 14, 2018, thirty-one families filed a lawsuit seeking an injunction to prevent the construction and operation of two units at a coal-fired plant in Kobe, Japan. The plaintiffs are represented by the Citizens’ Committee on the Kobe Coal-Fired Power Plant and named Kobe Steel Ltd., Kobelco Power Kobe No. 2 Inc. and Kansai Electric Power Co., Inc. as defendants.  According to the plaintiffs, the new units would have a total output of 1,300 megawatts, and emit 0.6% of the nation’s carbon dioxide emissions from energy. They assert that the construction and operation of the new coal-fired units would violate the right to clean air and a healthy and clean environment and right to enjoy a stable climate; conflict with Japan’s 2030 and 2050 climate targets; and pollute in residential areas where air quality standards are already being violated. 

On March 20, 2023, the Kobe District Court delivered a judgment discussing the request for an injunction to the construction and operation of the coal-fired power plants. The Court did not find a violation of personal rights to life, bodily integrity, and health, or of the right to a peaceful life.

On April 1, 2023, the citizens appealed the judgment. Thirty-four people appealed, and the process began on October 10, 2023. As their primary claim, the appellants sought an injunction against the operation of the power plant and an injunction against Kansai Electric Power’s instructions to generate electricity. As a preliminary claim, they sought a phased emission reduction toward the future so that carbon dioxide emissions will be zero by 2040, since the international goal is to eliminate all coal-fired power plants worldwide by the same year. The appellants, opposing the District Court decision, argued that their rights should be evaluated as being infringed by the state of being exposed to countless individual damages and the continuation of such a lifestyle, without actually having specific disasters. Specifically, the appellants insisted that “being forced to live in a climate unstable world with a temperature increase of over 1.5 degrees Celsius, where life and health are in danger and social instability” itself is a violation of their rights. Moreover, they claimed that not all CO2 emissions are illegal, but only those that would make it impossible to achieve the 1.5 degree target. They alleged that the appellees’ emissions fall under this category.

On October 23, 2024, an expert witness testimony on climate change was heard and the pleadings concluded. The verdict is scheduled to be handed down on April 24, 2025. Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Kobe Steel Ltd., et al. (Japan, Osaka High Court)

Japan: Hearings Commence for Applications of Injunction Against CO2 Emissions Based On Scientific Standards

16 young people from Japan nationwide, from Hokkaido to Kyushu, filed a case in the Nagoya District Court against 10 thermal power companies, including JERA Corporation, asking for an injunction against CO2 emissions based on the scientific standards. To ensure the plaintiffs and young people across Japan live tomorrow and, in the future, the defendants, the major Japanese electric power companies must decarbonize by the 2030s at least to limit the rise in average global temperatures to 1.5°C above pre-industrial levels. This case demands the defendants’ implementation of the emission reductions required by science. As we enter the era of “global boiling,” temperature rises are approaching 1.5°C worldwide, including Japan. We have already experienced extreme heat of over 40°C.

Plaintiffs claim that large emitting companies in Japan, which is a developed country, are also obligated to reduce their emissions to this level. The same should be applied to the defendants, the power generators, as a minimum obligation. However, the 2030 reduction targets proposed by the defendants are not only below the requisite level but are also extremely inadequate in that they continue to use coal-fired power generation and rely on technically unproven technologies such as hydrogen, ammonia co-firing, and CCS, all of which have little effect on emission reduction. Moreover, the defendants have not even set the 2035 target at all except JERA, which has set only a 40% reduction target from 2019 levels. In light of these circumstances, it is nearly impossible to assert that they are developing a plan that aligns with the 1.5°C objective. The plaintiffs filed this case in order to be protected from the even more severe impact of climate change, claiming the Court’s order for the defendants to fulfil their legal obligation to reduce their emissions The plaintiffs also expect the defendants to shift to a renewable energy company.

The first hearing was held on October 24, 2024, where the ten defendant companies made it clear that they would fight. The next hearing date is set for February 18, 2025. Youth Climate Case Japan for Tomorrow  (Japan, Nagoya District Court)

Portugal: Appeal to Proceed on Application for Declarations Relating to Portuguese Climate Framework Law

On November 26, 2023, three NGOs (Associação Último Recurso, Quercus and Sciaena) filed a complaint against the Portuguese State, pursuant to the Portuguese Class Action Statute (i.e., Law no. 83/95, of August 31, 1995).

They invoke that the Portuguese State adopted in 2021 a Climate Framework Law (i.e., Law no. 98/2021, of 31 December 2021), according to which the Portuguese State, until February 1, 2023, had an obligation to adopt several measures (including to enact laws and other political acts) aimed at achieving the GHG emissions reduction goal of 55% until 2030, in comparison with the emissions values of 2005.

These measures include the adoption of the carbon budgets for 2023/2025 and 2025/2030; a report of assessment of climate impact of the legislation in force; the regulation of the climate risk and impact of financial products; an amendment to the rules in relation to corporate governance; an amendment to the legal regime on the exploration for, and exploitation of, hydrocarbons. Moreover, the plaintiffs claim that other deadlines until the end of 2023 and early 2024 are likely to be failed.

Accordingly, the plaintiffs ask the Court (1) to declare that the Portuguese State has not complied with its obligations pursuant to the Portuguese Climate Framework Law, which realizes the human and fundamental rights listed in the Constitution and in the ECHR, and implements the Portuguese NDC submitted under the Paris Agreement; and (2) to require the State to adopt the laws and political acts necessary to comply with the Climate Framework Law.

On April 11, 2024, the Court of first instance dismissed the proceedings. The plaintiffs appealed.

Considering that the case was dismissed on lack of clarity of the request, the Supreme Court of Justice accepted the applicant’s appeal and ordered the applicant to reframe its request, within a deadline of 10 days, and to submit a more concrete and specified request. Associação Último Recurso et al. v. Portuguese State (Portugal, Lisbon Civil Court)

International Centre for Settlement of Investment Disputes: Proceedings Under Energy Charter Treaty Alleging Government Failure to Allow Transition from Coal Discontinued

On February 2, 2021, German utility RWE filed suit against the Netherlands government under the Energy Charter Treaty alleging that the government failed to allow adequate time and resources to transition away from coal. The Energy Charter Treaty, signed by 55 Parties, aims to protect foreign investments in energy and allows foreign investors to claim compensation through arbitration for unfair losses due to government regulation. The Netherlands government plans to phase out all coal-fired power plants by 2030. According to news reports, RWE alleges that this policy does not include adequate compensation to phase out or transition to biomass its coal-fired Eemshaven power plant in the Netherlands.

Following the German Federal Court of Justice’s decision on the inadmissibility of the present arbitration under German and European law, on October 16, 2023, RWE formally requested the discontinuance of the proceeding pursuant to Rule 44 of the ICSID Arbitration Rules. With the Netherlands not opposing the Claimant’s request, the Tribunal took note of the discontinuance of the proceeding. RWE v. the Netherlands (International Centre for Settlement of Investment Disputes)

Brazil: Injunction Rejected - Operation of Figueira Thermoelectric Plant to Continue

On August 20, 2024, the Instituto Internacional Arayara de Educação e Cultura - Instituto Arayara de Educação para a Sustentabilidade filed a Civil Public Action (CPA), with a request for urgent injunction, against Copel Geração e Transmissão S.A., the Instituto Água e Terra do Paraná (IAT), the State of Paraná, the National Electric Energy Agency (ANEEL), and the Federal Union on the grounds of alleged irregularities in the operation of the Figueira Thermoelectric Plant (UTE-FRA). Copel owns the plant, and it is alleged that there are unlawful practices in its environmental licensing and operations, resulting in environmental and climate damage. It is claimed that the coal used by the power plant contains a high concentration of radioactive elements, causing the atmosphere, climate, water, and soil degradation. The environmental agency reportedly denied access to documents regarding the environmental licensing of the activity, and the UTE allegedly operated for 18 years without the required Operating Licence, emitting pollutants above the limits allowed by law. Additionally, the plant’s expansion reportedly proceeded without a licensing process and operated for 35 years without mechanisms to control particulate emissions.

The plaintiff argued that the climate damage caused by illegal greenhouse gas (GHG) emissions should be quantified based on the social cost of carbon, with carbon pricing estimates provided by the World Bank and OECD. The plaintiff requests that the defendant provide documents and for an expert examination to accurately quantify the emissions, as the emissions presented by the UTE’s operation were estimated by the plaintiffs without access to the necessary documents. The plaintiff asks for an injunction, including document and report disclosure, the production of advance evidence to assess environmental damage, and the suspension of environmental and regulatory licensing procedures. Ultimately, it is requested that in summary: (i) the environmental licensing process and authorisations permitting the plant’s expansion be annulled; (ii) the defendants be ordered to cease operations until a proper licensing process is conducted, accompanied by an Environmental Impact Assessment (EIA/RIMA) and necessary technical studies; (iii) the cancellation of the environmental compensation agreement; (iv) the defendants be ordered to restore environmental damage caused by the UTE’s irregular operations and pay compensation for irreversible damage; (v) the defendants be ordered to pay compensation for climate damage due to the UTE’s irregular operation; and (vi) the payment of collective environmental moral damages.

On September 1, 2024, the Court denied the request for an injunction. It was argued that the evidence requested could be produced at an appropriate stage in the proceedings, and there was no need for early production. It was also noted that UTE Figueira has been in operation for a long time and contributes to the electricity supply in the state of Paraná; therefore, granting the injunction measures could pose a risk to consumers. Instituto Arayara vs. Copel, Instituto Água e Terra and others (UTE Figueira) (Brazil, Paraná Federal Court)

NEW CASES

Australia: Judicial Review Proceedings Sparked By Refusal to Issue Permit to Offshore Wind Farm

Flotation Energy, a company planning to build an offshore wind farm in Australia (called “Seadragon”), has commenced judicial review proceedings challenging the minister’s refusal to grant a license approving the project. Among the minister’s reasons for declining the license are concerns about threatened and aquatic species, the impact on terrestrial, marine and freshwater environments, Aboriginal cultural heritage values, and landscape and visual amenity. Seadragon Offshore Wind Pty Ltd v Minister for Climate Change and Energy (Australia Federal Court)

Brazil: Action to Deregulate the Carbon Market Established by Articles in Brazilian Law

In April 2024, the Partido Democrático Trabalhista (PDT), a political party, filed a Direct Action of Unconstitutionality (ADI) challenging the constitutionality of Articles 4, item I; 5, items V, VII, XI, and XIII; 6; 7, caput and § 2; and 13, caput and § 1 of Federal Law 13.576/2017 – the National Biofuels Policy Act (RenovaBio). The aim of the action is to deregulate the carbon market established by this policy. The party alleges a formal defect in the legislative process, claiming that the legislative process was diverted to serve private interests at the expense of environmental protection. On substantive grounds, it is argued that the law infringes constitutional provisions related to an ecologically balanced environment, the social function of property, the prohibition of insufficient protection, and free enterprise. The party contends that the law’s actual purpose is to provide financial support to the biofuels sector rather than to protect the environment. This assertion is based on RenovaBio’s alleged failure to contribute effectively to greenhouse gas (GHG) emission reductions due to the lack of additionality in Decarbonization Credits (CBIOs), meaning no measurable and effective reduction in GHG emissions or CO₂ removal occurs, as required by the law, to genuinely mitigate climate change. ADI 7617 (RenovaBio) (Brazil, Federal District Federal Court)

Brazil: Action against Government Seeking Clarification of Climate Impact of Offers for Blocks for Oil and Gas Exploration

On December 12, 2023, the Arayara International Institute of Education and Culture filled an Autonomous Action for the Anticipated Production of Evidence against the National Petroleum, Natural Gas and Biofuels Agency (ANP) and the Federal Union, with the aim of having them clarify the climate impact of their offers of blocks for oil and gas exploration. The plaintiff argues that the emissions associated with the ANP’s offers of blocks for oil and gas exploration could compromise compliance with the targets set by Brazil under the Paris Agreement, which have been internalized in the Brazilian legal system with supra-legal status. Also, it is argued that oil and gas exploration contradicts the objectives of the national energy policy, which includes protecting the environment and mitigating GHG emissions. The plaintiff states that there is no transparency about the calculations or emission estimates associated with the ANP’s offers of blocks for oil and gas exploration, nor about mitigation plans. He therefore seeks to provide the information needed to assess these impacts and possibly avoid the need for subsequent legal action to correct the country’s energy policies. Specifically, the aim is to clarify whether the Federal Government (i) estimates the GHG emissions potentially generated by the offer of oil and gas exploration blocks in ANP auctions at the time of or prior to the publicity of the offer notice; (ii) calculates how the emissions that will result from the oil and gas exploration of the blocks offered, if they are acquired, may affect compliance with the Brazilian NDC and the Paris Agreement; (iii) has some kind of calculation or analysis of how emissions from burning Brazilian oil exported to other countries affect the global climate system; (iv) has a plan for mitigating emissions from oil and gas exploration in the blocks offered by the ANP; and (v) takes these emissions into account when establishing the country’s energy policy.

On July 4, 2024, ANP filed its defense and argued that energy sources in the future will still include oil and natural gas. It said that ANP only implements public policies in the energy sector and is not responsible for formulating them and, therefore, the requests in the lawsuit should be addressed to the body that formulates the policy, the National Energy Policy Council (CNPE). Finally, it argued that the offer of blocks for the exploration and production of oil and natural gas, in itself, does not have the effect of emitting GHGs since there is no guarantee of the occurrence of deposits in these regions and, therefore, it would not be possible to estimate in advance the result of emissions from eventual production in the auctioned block.

On July 18, 2024, the Federal Union filed its defense and made the following responses: (i) GHG emissions are calculated indirectly, based on existing activities and historical data, and the assessment of an oil or natural gas discovery takes place only in an area under an exploration and production contract; (ii) the official means of verifying the national target is the National Inventory of GHG Emissions and Removals, which is submitted periodically to the UNFCCC; (iii) calculations of national GHG emissions from the energy sector do not account for emissions from the future use of exported oil, as these emissions are accounted for by the countries that import the oil; (iv) Brazil has established projects, activities, programmes and policy measures to monitor and mitigate its emissions, monitor impacts and adapt to climate change; (v) the deliberations of the CNPE, the body responsible for formulating energy policies and guidelines, are based on studies, assessments and technical documents from government bodies and entities in the energy sector, and these documents do not include data on potential emissions. A request was made for the case to be dismissed without a decision on the merits and, alternatively, for the procedure to be recognized as exhausted, in view of the information presented in the Information Note. Arayara Institute vs. ANP and Federal Union (Anticipated Production of Evidence on oil and gas auctions) (Brazil, Federal District Federal Court)

Bulgaria: Expansion of Mine Threatens Disappearance of Village in Radnevo Municipality

Beli Bryag, a village in Radnevo municipality, should disappear from the map because of the expansion of the state-owned Maritsa East Mines, but the whole process has been postponed several times. According to an order of the board of directors of “Mines Maritsa - East”, the deadline for the voluntary purchase of the properties was 31.12.2023, after which forced eviction begins. In Bely Bryag 95-99% of the properties have been expropriated. About thirty people still live in the village, most of them paying rent to the Mines. Before the eviction began, the village had 500 inhabitants. The Ministry of Energy is the indirect principal of Maritsa East Mines EAD - the capital is wholly owned by Bulgarian Energy Holding, and the Bulgarian state is 100% owner of the holding’s capital.

The main problem pointed out in the application is that there is no action to control the purchase of the land and property in the area of Beli Bryag, as well as the provision of funds for the acquisition of new, similar property. The Minister of Energy should supervise the lawful conduct of expropriation procedures where expropriation is for public interest activities. Maritsa East Mines still has to comply with the requirements of the European Bank for Reconstruction and Development’s environmental and social policy and, according to the adopted Resettlement Plan, must provide a so-called social package for the people. The case of the relocation of the cemetery park also remains painfully unclear. The Court is expected to issue judgment on this case by the year-end. Peter Tenev v. Ministry of Energy (Bulgaria, Administrative Court Stara Zagora)

Finland: Case against Finnish Government Alleging Inadequate Climate Policies in Breach of National Laws and Human Rights

In August 2024, a coalition of six Finnish environmental and human rights organizations, including Finnish Nature Conservation Union, Greenpeace, Amnesty International Finland, Climate Parents, Nature Association and Suoma Sámi Nuorat - Suomen Sámi youth filed a lawsuit against the Finnish government at the Supreme Administrative Court of Finland. In Finland, the warming of the climate has a strong impact on the traditional ways of life of the Sámi people and, thus, on the Sámi culture. The plaintiffs claim that the Finnish government’s inadequate climate policies are not only a breach of the nation’s own laws but also a violation of human rights. The plaintiffs argue that the Government’s insufficient climate actions and ignoring the special status of the Sami people in the preparation of policy measures in the land use sector violate the rights guaranteed to the Sami people by the Constitution and outlined in Finland’s 2022 Climate Act, which aims to achieve carbon neutrality by 2035. The case is currently pending before the Supreme Administrative Court of Finland. Finnish Association for Nature Conservation and others v Finland (Finland, Supreme Administrative Court)

South Korea: Elder Citizens Lodged Complaints to Government Claiming Weak Climate Policies Infringe Upon Constitutional Rights

123 elder citizens lodged complaints against the South Korean government to the National Human Rights Commission, claiming that its weak climate policies infringe upon their constitutional rights to life and the pursuit of happiness, particularly from the health impacts of climate change, including heat exposure and air pollution. The petitioners emphasize that the older population in Korea is vulnerable to climate issues during high poverty rates for senior citizens and that the country is the fastest-aging country in the world. The petitioners argue that South Korea’s carbon neutrality roadmap is not aligned with the 1.5’C target and that the reduction pathway backloads the emission reduction. The Commission’s decision is pending. Senior Citizens v. Korea (National Human Rights Commission)

South Korea: Pension Holders Claim Against High-Level Officials of National Pension Service for Alleged Violations of Fiduciary Duties

On February 22, 2024, 35 pension holders of the National Pension Service (“NPS”) filed a civil claim against the CEO Kim Tae Hyun, Director Seo Won-Joo, and Auditor Ryu Ji-Young, for violating their fiduciary duty as directors and auditor of the NPS. The plaintiffs argued that the defendants have failed to address the climate-related risks in the management of pension funds, particularly by failing to implement “coal phase out”  policy NPS announced in 2021. The plaintiffs claimed 20,500,000 KRW as damages for their financial loss and health impact caused by such failure. Kim Min et al. v. Kim Tae-Hyun et al. (Seoul District Court)

Turkey: Case Calling for Annulment and Suspension of Execution of Decision Holding that Environmental Impact Assessment (EIA) was Not Requirement for a Project by Çalık Petroleum Exploration and Production Company

The case has been filed against the Diyarbakır Governorship, for the suspension of execution and annulment of the decision of “EIA not required”, issued about an oil exploration and drilling project. While the project belongs to a private company, the regulations require an EIA procedure, and the procedure was conducted by the local governorship.

According to the Turkish regulation of EIA, EIA is certainly required for some oil projects and expert examination is needed for some projects to determine whether an EIA is required.

The exploration and drilling project (Permit No: AR/PRT/K/M45-C) of Çalık Petroleum Exploration and Production Company in Diyarbakir, Bismil, Harmanli Village 112 block 2 plot, which is in question, belongs to the second group. The Diyarbakır Governorship issued a decision that EIA is not required for the project. The Claimants argue that; the decision of “EIA not required” about the was unlawful.

The Claimants refer to several grounds to support their argument.  First, they refer to the seismic tests. When searching for oil, a series of explosions are often used to understand what is underground. This is called a seismic test. The Claimants argue that seismic testing destroys wildlife and soil.

Second, when searching for oil, taking into account that the substances used in drilling wells are toxic and that the debris carried to the surface during drilling contains radioactive minerals and heavy metals, it is obvious that agricultural areas, underground and surface waters will be in danger. In addition, toxic liquids coming out of the ground because of the exploration activity will mix with the air, soil, underground water and other water resources. Heavy metals in the fluids brought to the surface will also negatively affect agricultural and animal husbandry activities. Consequently, human health will also be seriously negatively affected.

The Claimants take the “EIA not required” decision into account and say that; in the decision issued by the Diyarbakır Governorship, expert institutions have clearly stated in their opinions that there might be a threat to agricultural production and that an EIA process should be carried out. There are water wells and agricultural areas under and around the oil field. Again, in the institution’s opinions, it has been stated that due to the water wells around, great care should be taken, and all necessary examinations should be carried out.

The Claimants also refer to several legal bases.

Claimants refer to the National Water Board of Turkey which was recently established by the Presidential Decree on November 29, 2023. And this oil exploration and extraction activity is clearly against this decree. (Considering that every place has recently been declared an oil exploration and extraction area, water resources are being endangered and that this decree, in other words, the state’s purposes, is being violated.)

In addition, they refer to the conditions in Annex 50, as required by Article 46/3 of the Turkish Petroleum Law Implementation Regulation stating that the conditions have not been met. Many of the other conditions in Annex 50 have also not been met. Many of the special permits, planning required by Article 48/2 and Articles 6 and 9, as well as the documents required by Article 24 of the Turkish Petroleum Law, are missing.

The Claimants also suggest that hundreds of mining and oil projects have been launched in Bismil and Diyarbakir in recent months, there is no cumulative impact assessment in the introduction file. It is argued that in the file, the real impact of this project on humans and the environment, as has not been taken into consideration. It has been stated that “the project implementer will undertake to take sufficient precautions in such cases during the activity” against the most critical hazardous issues. However, scientific planning and activities have not been concretized.

They also assert that in the project area, there are wildlife forms which are protected by the Bern Convention of The Council of Europe.

Second, the Claimants argue that the oil exploration and extraction activities are also contrary to the global climate goals that Turkey is a party to. They state that the greenhouse gases resulting from the use of oil create a heat-trapping effect in the atmosphere and cause climate change.

Turkey, in accordance with many international agreements, especially the Paris Climate Agreement, to which it is a party, is obliged to limit the temperature increase to 2 degrees and contribute to the mitigation against climate change. And the only way to do this is to reduce carbon emissions, in other words, to exit fossil fuels.

They also refer to the most recent climate adaptation strategy document of the Ministry of Agriculture and Forestry, namely “Ecosystem-Based Adaptation Strategy to Climate Change for Anatolian Steppe Ecosystems” dated July 6, 2022. The Strategy Document, which covers agriculture, pastures and meadows, inland waters and forests for the period 2022-2036, aims to:

• Increase resilience in ecosystems that are and will be negatively affected by climate change,
• Make rural population resistant to climate with improved agricultural economy,
• Increase carbon sink potential.

The Claimants put forward, however, the activity in question will serve to increase global warming by polluting water and agricultural resources and paving the way for fossil fuel use. In other words, they argue that the current activity is clearly in conflict with Turkish national plans.

Therefore, Claimants argue that the project which bears all those risks mentioned above can’t be exempted from the Environmental Impact Assessment. The Claimants state that the project should be annulled altogether but even if it continues to exist, because an Environmental Impact Assessment procedure is scientifically essential, the decision of “EIA not required” should be annulled.

The Court, on June 4, 2024, decided to appoint an independent expert committee for an exploration of the field to prepare an expert opinion. The committee completed the explorations on June 26, 2024 and issued its report July 23, 2024, which is contrary to the arguments of the Claimant. The Court’s decision is pending. Diyarbakir Bar Association & Ecology Association vs. Diyarbakir Governorship (Diyarbak 1st Administrative Court)

Turkey: Case Calling for Annulment and Suspension of Execution of Decision Holding that Environmental Impact Assessment (EIA) Was Not Requirement for “HANCERLI-9” Project

The case was filed against the decision of “EIA not required” about the oil exploration and extraction project of “HANCERLI-9”. According to the Turkish EIA regulation, some oil projects should get an EIA (Environmental Impact Assessment), while experts should examine others to decide whether an EIA is required. The Claimants say that in Diyarbakir, Ergani, Hancerler Village 126 block 1,2,3,4 plots and 127 block 3,4 plots, the decision of “EIA not required” about the exploration and drilling project (Permit No: “AR/TPO/K/L42-c1,c3,c4) of TPAO (Turkish Petroleum) was unlawful. The Claimants refer to several grounds to support their argument.  First, they refer to the seismic tests. When searching for oil, a seismic test is required, in which explosions are used to understand what is underground. The Claimants argue that seismic testing destroys wildlife and soil. Second, the substances used in drilling wells when searching for oil are toxic, and the debris carried to the surface contains radioactive minerals and heavy metals. Agricultural areas, as well as underground and surface waters, will be in danger. In addition, toxic liquids coming out of the ground because of the exploration activity will mix with the air, soil, underground water, and other water resources. Heavy metals in the fluids brought to the surface will also negatively affect agricultural and animal husbandry activities. Consequently, human health will also be seriously negatively affected.

The Claimants argue that the decision issued by the Diyarbakır Governorship not to require an EIA goes against what expert institutions have clearly stated: that there might be a threat to agricultural production and an EIA process should be carried out. The Claimants also refer to several legal bases. In the project introduction file, many toxic chemicals are listed for use during the project. However, there is no explanation about how and how much of these chemicals will be used and what types of damage may occur. TPAO established a financial responsibility insurance for potential hazards, which means the abovementioned dangers are probable. Projects that threaten agriculture also threaten food security, a growing issue worldwide. The Claimants further assert that houses are very close to the project area. They refer to the conditions in Annex 50, as required by Article 46/3 of the Turkish Petroleum Law Implementation Regulation, stating that the conditions have not been met. Many of the other conditions in Annex 50 have also not been met. Many special permits and planning required by Article 48/2 and Articles 6 and 9, as well as the documents required by Article 24 of the Turkish Petroleum Law, are missing.

Regarding the field of activity, DSI (State Hydraulic Works) stated that the area was surrounded by drilling wells and indicated that water analyses should be conducted. In addition, DSI noted that because the area is an agricultural site, alternative regions should be explored.

Claimants refer to the National Water Board of Turkey, recently established by the Presidential Decree on November 29, 2023. Considering that the areas have recently been declared an oil exploration and extraction area, water resources are being endangered, and this decree is being violated. In addition, hundreds of mining and oil projects have been launched in the Ergani and Diyarbakir area in recent months, and there is no cumulative impact assessment in the introduction file.  They also assert that in the project area, there are wildlife forms that the Bern Convention of The Council of Europe protects.

Finally, the Claimants argue that the oil exploration and extraction activities are contrary to the global climate goals that Turkey is a party to. They state that the GHG resulting from the use of oil creates a heat-trapping effect in the atmosphere and causes climate change. Turkey, following many international agreements, especially the Paris Climate Agreement, is obliged to limit the temperature increase to 2 degrees and contribute to climate change mitigation. The only way to do this is to reduce carbon emissions or, in other words, to phase out fossil fuels. They also refer to the most recent climate adaptation strategy document of the Ministry of Agriculture and Forestry, namely “Ecosystem-Based Adaptation Strategy to Climate Change for Anatolian Steppe Ecosystems,” dated July 6, 2022.

The Claimants said the activity would increase global warming by polluting water and agricultural resources and paving the way for fossil fuel use. Therefore, it conflicts with Turkish national plans.

Therefore, a project that bears all the abovementioned risks can’t be exempted from an EIA, and should be annulled altogether, or, at the very least, the decision of “EIA not required” should be overruled.

On April 30, 2024, the Court appointed an independent expert committee to explore the field and prepare an expert opinion. The committee completed the explorations on June 26, 2024, and issued its report on August 10, 2024. The report concluded by majority vote that the “EIA not required” decision is lawful. Diyarbakir Bar Association & Ecology Association vs. Diyarbakir Governorship No. 2024/245 (Diyarbak 2nd Administrative Court)

Turkey: Case Calling for Annulment and Suspension of Execution of Decision Holding that Environmental Impact Assessment (EIA) was Not Requirement for a Project by TPAO (Turkish Petroleum)

The case has been filed against Diyarbakır Governorship, for the suspension of execution and annulment of the decision of “EIA not required”, issued about an oil exploration and extraction project.

According to the Turkish regulation of EIA, EIA is certainly required for some oil projects and expert examination is needed for some projects to determine whether an EIA is required.

The exploration and drilling project (Permit No: “AR/TPO/K/L42-c1,c3,c4) of TPAO (Turkish Petroleum)in Diyarbakir, Cermik, Petekkaya Village 154 block 18 plot, which is in question, belongs to the second group. The Diyarbakır Governorship issued a decision that EIA is not required for the project. The Claimants argue that; the decision of “EIA not required” about the was unlawful.

The Claimants refer to several grounds to support their argument. First, they refer to the seismic tests. When searching for oil, a series of explosions are often used to understand what is underground. The Claimants argue that seismic testing destroys wildlife and soil.

Second, when searching for oil, taking into account that the substances used in drilling wells are toxic and that the debris carried to the surface during drilling contains radioactive minerals and heavy metals, it is obvious that agricultural areas underground and surface waters will be in danger. In addition, toxic liquids coming out of the ground because of the exploration activity will mix with the air, soil, underground water and other water resources. Heavy metals in the fluids brought to the surface will also negatively affect agricultural and animal husbandry activities. Consequently, human health will also be seriously negatively affected.

The Claimants take the “EIA not required” decision into account and say that; in the decision issued by the Diyarbakır Governorship, expert institutions have clearly stated in their opinions that there might be a threat to agricultural production and that an EIA process should be carried out. There are water wells and agricultural areas under and around the oil field. Again, in the institution’s opinions, it has been stated that due to the water wells around, great care should be taken, and all necessary examinations should be carried out.

The Claimants also suggest that, however hundreds of mining and oil projects have been launched in Cermik and Diyarbakir area in recent months, there is no cumulative impact assessment in the introduction file.

In the product introduction file, it was stated that only 3 tons of caustic chemicals would be used and tens of tons of different chemicals would also be used. TPAO, established a financial responsibility insurance for potential hazards which means the dangers mentioned above are most probable. Also, the area of the project is an agricultural area. Food security is a growing issue in our world and projects which are threats to agriculture are also threatening food security.

The Claimants assert that there are houses and people living as close as 178 meters from the project area. That is, there are wells, pastures and agricultural areas very close by. They refer to the conditions in Annex 50, as required by Article 46/3 of the Turkish Petroleum Law Implementation Regulation, stating that the conditions have not been met. Many of the other conditions in Annex 50 have also not been met. Many of the special permits, planning required by Article 48/2 and Articles 6 and 9, as well as the documents required by Article 24 of the Turkish Petroleum Law, are missing.

In its opinion regarding the field of activity, DSI (State Hydraulic Works) stated that the area was surrounded by drilling wells and indicated that water analyses should be conducted. In addition, DSI stated that the opinion of the 15th Regional Directorate regarding the nearby dam should be obtained, thus revealing the danger. However, surface waters were not even mentioned in the introduction file.

Claimants refer to the National Water Board of Turkey which was recently established by the Presidential Decree on November 29, 2023.  And this oil exploration and extraction activity is clearly against this decree. (Considering that every place has recently been declared an oil exploration and extraction area, water resources are being endangered and that this decree, in other words, the state’s purposes, is being violated)

They also assert that the project area, there are wildlife forms which are protected by the Bern Convention of The Council of Europe. Animals like “Night Frog”, “Thin and Broad-Toed Lizard”, “Field Lizard”, “Evening Bat” are endemic to the area, and they are protected by the convention.

Second, the Claimants argue that the oil exploration and extraction activities are also contrary to the global climate goals that Turkey is a party to. They state that greenhouse gases resulting from the use of oil create a heat-trapping effect in the atmosphere and cause climate change.

Turkey, in accordance with many international agreements, especially the Paris Climate Agreement, to which it is a party, is obliged to limit the temperature increase to 2 degrees and contribute to the mitigation against climate change. And the only way to do this is to reduce carbon emissions, in other words, to exit fossil fuels.

The Claimants put forward, however, the activity in question will serve to increase global warming by polluting water and agricultural resources and paving the way for fossil fuel use. In other words, they argue that the current activity is clearly in conflict with Turkish national plans.

Therefore, Claimants argue that the project which bears all those risks mentioned above can’t be exempted from the Environmental Impact Assessment. The Claimants state that they believe the project should be annulled altogether but even if it continues to exist, because an Environmental Impact Assessment procedure is scientifically essential, the decision of “EIA not required” should be annulled.

The Court, on May 14, 2024, decided to appoint an independent expert committee for an exploration of the field to prepare an expert opinion. The committee completed the explorations on June 26, 2024 and issued its report August 10, 2024. The report concluded by majority vote that the ‘EIA not required’ decision is lawful. The Court’s decision is pending. Diyarbakır Barosu & Ekoloji Derneği vs. Diyarbakır Valiliği (Diyarbak 2nd Administrative Court)