Posts Tagged UNFCCC
Gloucester Resources: A boon for climate change law and ‘ecologically sustainable development’ in Australia.
Update 8 May 2019 it was announced that Gloucester Resources will not be appealing hence the judgment stands.
Update 1 April 2019 Australian Coal Alliance Incorporated v Wyong Coal Pty Ltd  NSWLEC 31 was held slighlty later and is a good illustration of the difference between judicial review and merits review.
Gloucester Resources v Minister for planning  NSWLEC 7 is perfect material for my international environmental law classes at Monash come next (Australian) winter (September). Proposition is a permit for an open cut coal mine. Consent was refused on the basis of 3 reasons: the creation and operation of an open cut coal mine in the proposed location is in direct contravention of each zone’s planning objectives; the residual visual impact of the mine would be significant throughout all stages of the Project; and the Project is not in the public interest. Refusal was evidently appealed.
Preston CJ, the Chief Judge of the Land and Environment Court of New South Wales delivered serious support for an internationally engaged Australian (New South Wales) climate law approach. Although he did cite the Paris Agreement (439 ff: providing context to Australia and NSW’s future challenges; and including an interesting discussion on the balanced measures that might be needed to achieve Australia’s Paris Goals, refuted at 534 ff) and the UNFCCC, he did not need Paris, Kyoto, UNFCCC or anything else ‘international’ to do so. He applied the NSW principle of ‘ecologically sustainable development’ (ESD; a notion which often rings tautologically to my ears).
A blog post cannot do justice to a 700 para judgment – Note the following paras:
At 694 ‘Acceptability of proposed development of natural resource depends not on location of natural resource but on sustainability. One of the ESD principles is sustainable use– exploiting natural resources in manner which is ‘sustainable’ ‘prudent’ ‘rational’ ‘wise’ ‘appropriate’
At 696 ‘In this case, exploitation of coal resource in Gloucester valley would not be sustainable use and would cause substantial environmental and social harm. The Project would have high visual impact over the life of the mine of about two decades. The Project would cause noise, air and light pollution that will contribute to adverse social impacts. Project will have significant negative social impacts; access to and use of infrastructure, services and facilities; culture; health and wellbeing; surroundings; and fears and aspirations…The Project will cause distributive inequity, both within the current generation and between the current and future generations.’
At 514: rejection of the relevance of the limited impact which the project will have on Australia’s GHG emissions overall, with reference to US (EPA v Massachusetts) and the Dutch Urgenda case.
No doubt appeal will follow – a case to watch.
One can say many things about climate change litigation by individuals. (See my earlier piece on the Dutch Urgenda case). Many argue that the separation of powers suggest that governments, not judges, should be making climate policy. Or that international environmental law lacks the type of direct effect potentially required for it to be validly invoked by citisens. Others point to the duty of care of Governments; to binding – even if fluffy – climate change obligations taken on since at least the 1990s, and to the utter lack of progress following more than 25 years of international climate change law.
It is therefore no surprise to see that this type of litigation has now also reached the European Court of Justice: the text of the application is here, see also brief legal (by Olivia Featherstone) and Guardian background.
Like cases before it, colleagues shy of preparation materials for an international environmental law course, with comparative EU law thrown in, can use the case to hinge an entire course on.
As Olivia reports, the legal principles involved are the following:
The claimants state that EU emissions leading to climate change are contrary to:
- The principle of equality (Articles 20 and 21, EU Charter)
- The principle of sustainable development (Article 3 TEU, Article 11 TFEU)
- Article 37 EU Charter
- Article 3 UNFCCC
- The no harm principle in international law
- Article 191 ff TFEU (the EU’s environmental policy
One to watch.
EU Environmental Law, with Leonie Reins, Edward Elgar, 1st ed. 2017, part I Chapter 2 in particular.
Update 29 December 2017. In Milieudefensie et al v The Netherlands the Rechtbank Den Haag was less accommodating to plaintiff in similar public interest litigation involving air pollution. Arguments included Directive 2008/50, WHO health standards, and Articles 2-8 ECHR. It is clear that cases like these will continue to be brought, and will not always side with environmental action groups. Yet there is no doubt that they are an essential part in making Governments sit up and take proper action rather than relying on the separation of powers principle effectively to do nothing. (Greenberg Traurig have good review here).
nUpdate 12 November 2015: the Belgian case has been held up due to the language regime in Belgium’s civil procedure rules.
I have reported previously on this action, when it was launched. The Court at The Hague held late June. For good (and impressive) measure, it immediately released an English translation of the judgment. Jolene Lin has excellent overview here, I will simply add the one or two things which I thought were particularly striking.
Firstly, this judgment was not written by a bunch of maverick ‘environmental’ judges. It is the commercial court at The Hague which issued it (see the reference to ‘team handel’, ‘handel’ meaning commerce, or trade).
The judgment hinges on the State’s duty of care which the court established. Urgenda, applicant, had suggested that regardless of the individual behaviour of Dutch citisens and corporations, the Government carries overall or ‘systemic’ responsibility (‘systeemverantwoordelijkheid’), as the representative of the sovereign Dutch nation, to ensure that it controls emissions emanating from The Netherlands. Article 21 of the Dutch Constitution and the international no harm (sic utere tuo) principle featured heavily in the court’s acceptance of the State duty of care. That the Dutch action might only be a drop in the ocean, did not impress the judge: plenty of pennies make a pound, and at any rate, The Netherlands, as a developed nation, were found to have increased responsibility.
At 4.42 and 4.43, the Court then applies what in EU law is known as the Marleasing principle.
‘From an international-law perspective, the State is bound to UN Climate Change Convention, the Kyoto Protocol (with the associated Doha Amendment as soon as it enters into force) and the “no harm” principle. However, this international-law binding force only involves obligations towards other states. When the State fails one of its obligations towards one or more other states, it does not imply that the State is acting unlawfully towards Urgenda. It is different when the written or unwritten rule of international law concerns a decree that “connects one and all”. After all, Article 93 of the Dutch Constitution determines that citizens can derive a right from it if its contents can connect one and all. The court – and the Parties – states first and foremost that the stipulations included in the convention, the protocol and the “no harm” principle do not have a binding force towards citizens (private individuals and legal persons). Urgenda therefore cannot directly rely on this principle, the convention and the protocol. (….)
This does not affect the fact that a state can be supposed to want to meet its international-law obligations. From this it follows that an international-law standard – a statutory provision or an unwritten legal standard – may not be explained or applied in a manner which would mean that the state in question has violated an international-law obligation, unless no other interpretation or application is possible. This is a generally acknowledged rule in the legal system. This means that when applying and interpreting national-law open standards and concepts, including social proprietary, reasonableness and propriety, the general interest or certain legal principles, the court takes account of such international-law obligations. This way, these obligations have a “reflex effect” in national law.‘
In this respect the court also referred extensively to the European Court of Human Rights’ case-law on the duty of a State to put into place a legislative and administrative framework to address the challenges posed by dangerous activities.
The Court also, with reference to international scientific consensus, concluded that climate mitigation, rather than adaptation, is the more effective, efficient and least expensive way to address climate change.
Eventually it settles for a finding of duty of care and ensuing responsibility to reduce the emission of greenhouse gases by at least 25% viz 1990 levels, by 2020. This 25% is the floor of what the international scientific community suggests is needed properly to address the dangers of climate change. (The court, in deference to trias politica, therefore did not want to go higher than that floor).
Next up (other than appeal, one might imagine): the Belgian courts, which have been seised of a similar action.
Declaration of interest: I advice the Belgian litigation pro bono.
As has been more or less widely reported, the Dutch NGO Urgenta is planning to serve proceedings upon the Dutch State some time in November, seeking a court order obliging the State to present within 6 months, a realistic plan to reduce drastically The Netherlands’ CO2 emissions, and actively to inform the public of the causes and consequences of climate change. The draft proceedings (in Dutch only) review summarily (well, still leading to a 114 page document) the State’s obligations under public international law, and EU law, and the proposed consequential liabilities.
Trail Smelter, Minnes de Potasse, the Stern Report….: they all are mentioned. Of specific interest is the emphasis put on human rights, and the emphatic defence of the argument that The Netherlands also has a duty of care vis-a-vis damage occurring elsewhere (in particular: the developing world).
A maverick action? No doubt, and no doubt so intended – as are copycat actions. Desperate? Probably. However when desperate action meets maverick judge, interesting things do happen…
ICAO puts a spanner in the EU’s ETS works – Resolution calls for bilateral deals in the event of non-EU flights
After considerable debate, ICAO have adopted a Resolution on 4 October, holding inter alia that the EU must not extend its emissions trading scheme to flights covering non-EU territory, unless and until bilateral deals are concluded with the States concerned (see in particular point 16 of Resolution 17.2). This eventual position is considerably stricter for the EU than previous drafts.
ICAO did forecast work to start on an international scheme by 2016, with a view to resulting in a regime that will kick of in 2020. This delay is, one assumes, unlikely to be palatable by the European Parliament, especially in light of the European Court of Justice’s support for the extension. The EU therefore now needs to decide whether to up the stakes and lift its freezing of the ETS extension; leave the freeze in place and engage fully with ICAO’s search for multilateral action (not that the EU have not been trying so far…); pursue bilateral agreements with third States (not that mad an idea and not one which the EU have totally dismissed in the past); or amend its ETS.