Climate Law Insider, Newsletter 5/2021

List of Contents:
Historic Victory Before the German Constitutional Court |ClientEarth Sues Central Bank of Belgium for Climate Failings|New Climate Case Before the ECtHR |
Breakthrough in EU Climate Law Trilogue | U.S. Hosts Leaders Climate Summit | Youth Sues Brazilian Government for Deceptive Climate Targets | French Tribunal Partially Rejects Authorisation of Total Bio-Refinery | Pakistan’s Supreme Court Considers Inter-Generational Climate Concerns

- Historic Victory Before the German Constitutional Court: Legislature Must Improve Climate Law -
Germany’s Highest Court, in its decision on the 29th of April, found that the Federal Climate Protection Act is unconstitutional in part and infringes fundamental rights, especially those of future generations. After Dutch, French and Irish climate victories, this comes as a groundbreaking decision, strengthening human rights and intergenerational equity in the context of climate change. Four complaints were brought before Germany’s Highest Court, supported by various NGO’s, demanding stronger greenhouse gas reduction targets. The Constitutional Court acknowledged that climate protection is a justiciable human right and that the legislature is obliged to take climate mitigation action. However, it did not base its decision on a violation of State’s duty to protect life and health (yet), but on the violation of claimants’ civil liberties – a novel turn in the legal reasoning in climate litigation and fundamental rights. By setting the greenhouse gas reduction target at 55% of 1990 levels by 2030, the Federal Climate Change Act offloads major emission reduction burdens onto periods after 2030 without further specificity. The Court found that the constitutional climate goal must be defined in accordance with the Paris Agreement’s temperature goals and endorsed the well below 2°C, preferably 1.5°C target. To reach the Paris temperature target, the reductions necessary after 2030 will have to be achieved with ever greater speed and urgency, “thereby jeopardizing practically every type of freedom protected by fundamental rights”, the Court held. The challenged provisions thus violate the rights of the complainants and the legislature is now obliged to present a coherent reduction pathway by the end of 2022, an order that can hardly be fulfilled without significantly strengthened 2030 targets. Lawyer Dr. Roda Verheyen (Hamburg), who represents the young plaintiffs, commented "Today, the Federal Constitutional Court has set a globally remarkable new standard for climate protection as a human right. It has recognised the extreme climate crisis and interpreted fundamental rights in a way that is just for present and future generations. Legislators now have a mandate to define a coherent reduction path to achieve greenhouse gas neutrality. Waiting and delaying radical emission reductions until later is unconstitutional. Climate action today must ensure that there is still room for future generations."

- ClientEarth Sues Central Bank of Belgium for Climate Failings -
ClientEarth has filed legal action against the Belgian National Bank for breaching its legal obligations to take into account environmental protection and human rights requirements when buying corporate bonds. The Belgian National Bank takes part in the European Central Bank’s (ECB) Corporate Sector Purchase Programme (CSPP). Under this programme, the Bank purchases corporate assets, many of which are from companies in the fossil fuel or greenhouse gas-intensive sectors. More than half of the 266 USD billion of assets held under the CSPP programme were issued by high emitting firms, thus facilitating the expansion of their climate damaging activities. ClientEarth is arguing that the programme is invalid due to its violation to the Central Bank’s legal obligation to contribute to the protection of the environment and to respect human rights. The case was filed in a Belgian court, but the central question is whether the ECB’s purchase programme itself is valid or invalid – a question the lawyers hope will be referred to the European Court of Justice. If found to be invalid, the Court is asked to order the Central Bank of Belgium to stop the purchase of bonds under the programme.

- New Climate Case Before the ECtHR: Complaint Against Austria by MS Patient -
Mex M. filed a complaint against Austria before the European Court of Human Rights (ECtHR) for failing to fulfil its duties with regard to the climate crisis. M. suffers from a temperature-sensitive form of Multiple Sclerosis, causing him to be dependent on a wheelchair in temperatures of 25°C or above. Before going to the ECtHR he took part in a class action requesting the Austrian Constitutional Court to invalidate tax exemptions that give credit to air travel and not railways. The request, relying on Art. 2 and 8 ECHR and Art. 2 and 7 of the Charter of Fundamental Rights, was dismissed as inadmissible in September 2020. In the application before the ECtHR, the plaintiff claims a violation of his right to private and family life due to the failure of the Austrian government to set effective climate measures to reduce greenhouse gas emissions. The application from 25th of March 2021 comes after six young people from Portugal took 33 countries to the ECTHR for failing to do their part to combat climate change, followed soon by an application by the Union of Swiss Senior Women for Climate Protection against Switzerland. Both cases were filed last year and both have been given priority under Rule 41.

- Breakthrough in EU Climate Law Trilogue -
On April 21, EU Climate Law negotiators managed to cut a deal in the long-stalled negotiations between representatives from the European Parliament, the Member States, and the European Commission. Throughout the negotiations, national Governments and the Commission insisted on the 55% reduction target to be met by 2030, and rejected calls by the Parliament to increase the target to 60% and to exclude carbon removals from the target. In the final deal, negotiators agreed on 55% reductions and to limit the amount of carbon removals that can be included in accounting for emissions reductions to reach the target. In the negotiations, the European Parliament also managed to integrate a new scientific advisory board, an intermediate 2040 target, and an indicative carbon budget in the EU climate law. Press statements from the three institutions are available here (EP / COM / COUNCIL) – the final legal text of the European Climate Law will be available soon. The website ClimateLawTracker provides a detailed overview of how the text evolved.

- U.S. Hosts Leaders Climate Summit: -
Last month, the Biden-Harris administration in the U.S. gathered 40 world leaders together for a 2 day virtual summit about climate pledges and future international cooperation. Attendees included leaders from some of the world’s largest emitters along with leaders from smaller states already facing severe impacts from climate change and representatives from Indigenous communities and businesses. Opening the summit with a focus on the 1.5°C temperature goal and highlighting the economic benefits of enhanced climate ambition, the U.S. administration used this occasion to present the submission of their new Nationally Determined Contribution (NDC) to the UNFCCC. It includes an economy-wide target of reducing net greenhouse gas emissions by 50-52% below 2005 levels by 2030 – a much more ambitious target than the NDC submitted by the Obama administration in the run up to the Paris Agreement. Details of domestic legislation, however, still need to be figured out. A summary of coverage of the Leader Summit is provided by CarbonBrief.

- Youth Sues Brazilian Government for Deceptive Climate Targets -
A new Brazilian climate lawsuit was filed on April 13th by six young activists before a São Paulo state court. It seeks the annulment of the updated Brazilian pledge under the Paris Agreement, which was presented at the end of last year. Applicants are members of environmental NGOs Engajamundo and Fridays For Future Brasil, who argue that Brazil has violated Art. 4.3 of the Paris Agreement which requires increased levels of ambition for each successive NDC. The original Brazilian NDC, submitted in 2015, sought to reduce its emissions by 37% in 2025 and 43% in 2030 compared to 2005 levels. These reduction levels were “consistent” with net emissions of 1.3 billion tons of CO2-eq in 2025 and 1.2 billion tons in 2030. However, last December, Brazil updated its NDC with new emissions calculations for the base year, which raises net emissions to 1.76 billion tons in 2025 and 1.6 billion in 2030. Applicants argue that this "accounting trick" results in an increase of emissions of approximately 400 million tons of CO2-eq for each target year. Applicants also claim that the increase of emissions resulting from the government’s negligence might encroach upon the right to a healthy environment. They request an injunctive order to suspend the administrative act which codifies Brazil's updated NDC, require the government to revise the NDC in line with the requirements of the Paris Agreement, and establish an inclusive and participatory process with civil society and the scientific community for the revision of the NDC. The lawsuit is supported by eight former Environment Ministers. This is a landmark case that comes on the heels of recent climate cases in Brazil, but what it is unique about this new case is that it is the first challenge to the ambition of an NDC.

- French Tribunal Partially Rejects Authorisation of Total Bio-Refinery -
On the 1st of April, the Administrative Tribunal of Marseille partially granted the applicants' request to annul an order that authorises the company Total France to continue operating a bio-refinery located on La Mède platform in the municipalities of Martigues and Châteauneuf-les-Martigues. The case was brought by several civil society associations, namely ‘Les Amis de la Terre France’, ‘Greenpeace France’, ‘France Nature Environnement’ et ‘Ligue de Protection des Oiseaux’. The Court determined that Total’s impact assessment was inadequate rendering the authorisation to operate the bio-refinery invalid. Notably, the Court referred to the omission of climate change impacts arising from the use of palm oil and its derivatives to produce biofuels, thereby acknowledging the harm resulting from land use change and deforestation regardless of the location and method of this vegetable oil’s production. However, the Court did not accept the applicants’ argument concerning the unsuitability of the impact assessment due to the omission of particular impacts on the environment where the palm oil is produced, namely in several Asian countries. Ultimately, the Court decided to give Bouches-du-Rhône Prefect nine months to have the EIA conducted by Total France, to assess it through the regional environmental authority, and to submit the opinion and the additional impact study to a public enquiry. It rejected the rest of the arguments put forward by the associations and did not consider it necessary to suspend the execution of the authorisation issued to Total France. This partial victory for the plaintiffs is just one outcome in the list of pending climate cases oil major Total faces in France.

- Pakistan’s Supreme Court Considers Inter-Generational Climate Concerns in its Judgement -
Pakistan’s highest Court delivered a ruling on April 19th in which it upheld the government’s plan to declare certain zones free from activities with a high risk of pollution. The Court dismissed the lawsuit brought by a cement factory who sought to build new facilities in the exclusion area. In its ruling, the Court developed its reasoning with climate justice concerns at the forefront and noted the vulnerability of Pakistan vis-à-vis climate change, which renders the country’s National Climate Change Policy central to all sectors. Justice Syed Mansoor Ali Shah remarked that another important dimension of climate change was intergenerational justice and the need for climate democracy. He stated that the “tragedy is that tomorrow’s generations aren’t here to challenge this pillaging of their inheritance. The great silent majority of future generations is rendered powerless and needs a voice. This court should be mindful that its decisions also adjudicate upon the rights of the future generations of this country.” This case is yet another progressive development from Pakistan, widely known by precedents found in Leghari v. Federation of Pakistan and Sheikh Asim Farooq v. Federation of Pakistan.

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Anne, Juan, and Felix

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