Climate Law Insider, Newsletter 2/2021

List of contents: Border Carbon Adjustments: Part of the EU Green; Tracking Climate Protection Performance: 2021’s CCPI; UN’s Global Climate Litigation Report Finds a Surge of Climate Lawsuits Globally; Ecuadorian Court Orders Stop to Gas Flaring from Oil Industry in the Amazon; While Approving Major Gas Plant, UK Court of Appeal Holds that Climate Change Impacts may Suffice for Refusal of Planning Permission; Historic Victory in “Case of the Century”: French State Found to be Liable for Climate Inaction

- Border Carbon Adjustments: Part of the EU Green Deal -
https://www.swp-berlin.org/en/publication/the-eus-co2-border-adjustment-climate-or-fiscal-policy/

Since the new EU Commission has been in office, a political instrument that has repeatedly made headlines in the past has garnered new attention. As part of the EU Green Deal, the EU Commission as well as Heads of States and Governments are exploring the idea of establishing a carbon border tax. Legislative proposals are expected to be submitted in 2021. Susanne Droege, (SWP) highlights the importance of WTO compatibility and the diplomatic implications that come with implementing such a measure and stresses that the currently debated option of introducing a carbon border tax as a fiscal tool that generates revenues for the EU rather than climate protection funds for poorer countries makes these two key aspect of border carbon policies much more difficult. Scholars in the field of integrating climate and trade policies point out that the actual design of this measure has the potential to spur allegations of protectionist policies. It will therefore be interesting to see how the Commission formulates its policy proposals and embeds the measure in the broader setting of the EU Green Deal.

For some background see also: https://voxeu.org/article/what-european-carbon-border-tax-might-look

- Tracking Climate Protection Performance: 2021’s CCPI-
https://ccpi.org/download/the-climate-change-performance-index-2021/

With the ability to track climate policy efforts by the 58 countries responsible for 90% of global emissions, Germanwatch, NewClimate Institute and the Climate Action Network provide a useful tool to explore both regulatory progress and inertia. The rankings are based on four key components: GHG Emissions (40%), Renewable Energy (20%), Energy Use (20%) and Climate Policy (20%), with the latter assessed by experts from respective countries. Since many countries are currently in the process of reforming their domestic climate policies and targets, such assessments can only be a snapshot. However, in times of increasingly complex climate policy approaches, as well as communication campaigns around net zero targets, this approach using five different indicators offers a useful assessment of recent developments in the context of the Paris Agreement targets.

- UN’s Global Climate Litigation Report Finds a Surge of Climate Lawsuits Globally -
https://wedocs.unep.org/bitstream/handle/20.500.11822/34818/GCLR.pdf?sequence=1&isAllowed=y

In January, the United Nations Environment Programme, with the support of the Sabin Center for Climate Change at Columbia University, published the Global Climate Litigation Report: 2020 Status Review, which provides an overview of the current state of climate change litigation around the world. The 2017 version identified 884 cases brought in 24 countries, comprised of 654 cases in the United States of America and 230 cases in all other countries combined. The 2020 version shows that the number of cases has nearly doubled with at least 1,550 climate change cases filed in 38 countries (39 counting the courts of the European Union). This includes approximately 1,200 cases filed in the U.S. and over 350 cases filed in all other countries combined. The report also highlights key trends in climate litigation, including an increased number of human rights arguments; domestic climate policy enforcement actions; non-extraction of fossil fuels; corporate climate liability; adaptation-related cases; and tackling corporate greenwashing on issues concerning climate change and energy transition. This report also foresees that climate litigation may be heading to consumer and investor fraud claims with an eye toward climate risk disclosure; improper handling of climate-related disasters; a focus on the challenges of implementing court orders; the centrality of climate attribution in advanced stages of a case; and a bigger role for international adjudicatory bodies. Finally, the report provides insightful summaries of and commentaries on key cases that policy makers, academics and practitioners might find useful.

- Ecuadorian Court Orders Stop to Gas Flaring from Oil Industry in the Amazon -
https://www.amazonfrontlines.org/chronicles/amazon-lawsuit-gas-flaring/

On January 26, the Court of Justice of the Sucumbíos Province in the Ecuadorian Amazon ruled in favour of nine girls who sought to eliminate the pollution generated by 400 open-air gas flaring towers linked to oil exploitation. In the appeal, plaintiffs argued that gas flaring in the Amazon region violates their rights to water, health, food sovereignty and a healthy and ecologically balanced environment. On February 20, 2020, plaintiffs filed a constitutional injunction against the state-owned oil company PetroAmazonas, the Ministry of Energy and Non-Renewable Natural Resources and the Ministry of Environment. The constitutional injunction was originally denied but then reversed on appeal. The court of appeals declared that the Ecuadorian government “has ignored the right of the plaintiffs to live in a healthy and ecologically balanced environment, disregarding their right to health by not providing or promoting the use of environmentally clean technologies”. This unprecedented case is a good example of strategic environmental litigation in the Global South, with the potential of reversing a well-established and highly polluting practice in the oil industry, with clear implications for CO2 emissions reductions.

- While Approving Major Gas Plant, UK Court of Appeal Holds that Climate Change Impacts may Suffice for Refusal of Planning Permission -
https://www.clientearth.org/latest/latest-updates/news/court-upholds-gas-plant-approval-but-sets-important-climate-planning-precedent/

Planning decisions are becoming an increasingly important field for climate change litigation. After the final judgment on Heathrow’s expansion last December, the approval of what would be Europe’s largest gas power plant, which was challenged on climate grounds as well, was before a UK court. In its judgment from 21 January 2021 the UK Court of Appeal upheld the planning approval for the Drax gas plant in Selby. Client Earth, the organization which brought the case to court, argued that the Secretary of State’s decision to approve the plant was unlawful because the Government failed to properly assess the climate impact of the proposed 3.6GW gas plant and the need for the project, in line with its own planning policies and recommendations. Taken together with already approved large-scale gas plants, the approval of the Drax project takes total planned gas capacity to 18 GW, three times higher than the UK government’s estimates of what is needed. The UK government set a target of reaching net zero greenhouse gas emissions by 2050, but according to the UK Climate Change Committee, the UK will need a completely decarbonized power system by 2035 – a date that is half the expected operating life-time of the project. While finding that the decision was nonetheless lawful the Court of Appeal held that planning consent for major energy infrastructure can be refused on the basis of climate change impacts alone. “This ruling sets an important precedent: major energy projects in the UK can be rejected on climate change grounds, and the Government must consider the carbon lock-in risk of each project.”, said ClientEarth lawyer Sam Hunter Jones.

- Historic Victory in “Case of the Century”: French State Found to be Liable for Climate Inaction -
https://notreaffaireatous.org/pr-hearing-of-the-case-of-the-century-in-court-one-more-step-towards-a-historic-victory-for-climate/

After the groundbreaking decision in the Dutch ‘Urgenda’ case, the next historic judgment comes from France: in its judgment from the 3rd of February, the Paris Administrative Court acknowledged the French State’s responsibility in contributing to the climate crisis and found that the State must respect its commitments to reduce greenhouse gas emissions. The case was filed in 2019 by four French NGOs (Notre Affaire à Tous, la Fondation Nicolas Hulot, Greenpeace France and Oxfam France) to hold France accountable for its failure to comply with its international, European and national emissions reduction targets. The case enjoyed the support of 2.3 million citizens, who signed the biggest ever online petition in France. Even the rapporteur public, an independent magistrate responsible for guiding the Court in its decision, advised the Court in January this year that recognizing the state’s responsibility for climate action was necessary: `By not complying with its climate objective, France is at fault, and the State should be held responsible for that.’ The Court’s recognition on France’s failure to fulfil its responsibility is a crucial step in obtaining a Court order forcing the state to act. The case, often dubbed the ‘Case of the Century’ is intertwined with a case filed by the city Grande-Synthe before the Conseil d’Etat, Fance’s highest administrative court, in which the Court found in November 2020 that France’s climate commitments are binding, and giving the State three months to develop a plan to reach its emissions reduction targets for 2030.

Kind Regards,

Anne, Juan, and Felix

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