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Here are highlights of this month's climate litigation update. The full update is available here:
Montana Trial Court Denied State Defendants’ Motion to Stay Judgment Pending Appeal in Youth Plaintiffs’ Constitutional Climate Case; Defendants Seek Stay in Montana Supreme Court
On November 21, 2023, the Montana District Court denied State defendants’ motion for clarification and for stay of judgment pending the defendants’ appeal of the court’s August 2023 determination that a Montana Environmental Policy Act provision limiting considering of climate change violated youth plaintiffs’ right under the Montana Constitution to a clean and healthful environment. The court first concluded that it did not have jurisdiction to consider the motion for clarification because the Montana Supreme Court has accepted the case for interlocutory appeal. Regarding the motion for stay, the district court found that the defendants failed to establish a likelihood that they would succeed on the merits of their appeal. The district court rejected any contention that the relief granted in the August 2023 order was beyond the scope of the court’s power, noting that it had not ordered the defendants “to prepare and implement a remedial climate recovery plan,” but rather had enjoined the defendants from following unconstitutional statutes. The district court also found that the defendants did not establish that considering greenhouse gas emissions and climate change impacts in environmental reviews would cause any irreparable harm, finding no evidence to support the defendants’ allegations that such consideration would “undermine Montana’s energy system, increase costs to consumers, compromise grid reliability, or cause any other irreparable harms to Defendants.” The court also rejected the defendants’ allegations that they would bear increased litigation and administrative burdens. The court found, moreover, that the youth plaintiffs would experience infringement of their constitutional rights in the absence of a stay, and that “[d]epletion or degradation of the environment and natural resources also constitutes irreparable harm.” The court also found that the public interest lay “in protecting Montana’s clean and healthful environment and in protecting the constitutional rights of all Montanans, especially the youth.” On December 1, the State agencies and the Governor filed a motion in the Montana Supreme Court requesting a stay of the district court’s August 2023 order pending appeal. Held v. State, No. DV-2020-0000307 (Mont. Dist. Ct. Nov. 21, 2023), No. DA 23-0575 (Mont. Dec. 1, 2023)
Belgium: Court of Appeal of Brussels Orders Authorities to Reduce GHG Emissions
Similar to the Urgenda case in the Netherlands, the Klimaatzaak—“climate case”—was brought by an organization of concerned citizens, and 58,000 citizen co-plaintiffs, arguing that Belgian law requires the Belgian government’s approach to reducing greenhouse gas emissions to be more aggressive. On June 17, 2021, the Brussels Court of First Instance held that the Belgium government breached its duty of care by failing to take necessary measures to prevent the harmful effects of climate change, but declined to set specific reduction targets on separation of powers grounds.
On November 17, 2021, Klimaatzaak appealed the judgment of the Brussels Court of First Instance. The appeal was primarily aimed at the Tribunal’s refusal to set specific binding targets related to the reduction of greenhouse gas emissions over time.
The Court of Appeal of Brussels handed down its decision on 30 November 2023. The Court confirmed the finding of breaches established at first instance (except in the case of the Walloon Region), but in addition ordered the defendant authorities to reduce their GHG emissions. Unlike the judge at first instance, the Court therefore considers that using its power of injunction against public authorities does not necessarily infringe the principle of separation of powers, provided that the judge does not take the place of the authorities in choosing the means to remedy violations.
The court ordered competent Belgian public authorities (the Federal State, Flemish Region and the Brussels-Capital Region) to reduce their GHG emissions of 55% compared to the 1990 level by 2030. The grounds of this decision are based on the breach of human rights (articles 2 and 8 of the ECHR) and civil liability rules (articles 1382 and 1383 of the (Former) Civil Code).
However, the Court reformed the first instance judgment towards the Walloon Region by establishing that this authority is already playing its role in the fight against climate change. Therefore, the Court observes that there is no breach of human rights or civil liability rules on the part of the Walloon Region. The Court suspended its ruling on the question of the penalty payment and the production of the GHG emissions reports, depending on the official figures to be produced for the period 2020-2024 by the convicted authorities. The parties have 3 months to lodge a final recourse with the Court of Cassation. (Belgium, VZW Klimaatzaak v. Kingdom of Belgium & Others)
Brazil: Political Parties Challenge Government’s Inaction on Amazon Fund, Supreme Court Orders Reactivation
On June 5, 2020, four political parties filed a Direct Action of Unconstitutionality for Omission (ADI-O), before the Federal Supreme Court (STF), challenging the Federal government’s alleged failure to adopt administrative measures concerning the Amazon Fund.
The Amazon Fund, created by the Decree 6,527/08, has the objective of promoting projects that prevent or combat deforestation and finances actions for the Reduction of Emissions from Deforestation and Forest Degradation (REDD +) mechanism, under the UNFCCC. The plaintiffs claim that the fund has not approved any project since 2019, although resources are available and projects are awaiting technical analysis. They further allege that between 2019 and 2020, important mechanisms that allowed the functioning and management of the Amazon Fund were extinguished, namely: the Technical Committee of the Amazon Fund (CTFA), responsible for calculating deforestation and the amount of carbon emitted, and the Steering Committee of the Amazon Fund (COFA), the Fund’s governance body.
The plaintiffs rely on the common duty of the Federal Government, the States, the Federal District and the Municipalities to “protect the environment and fight pollution in any of its forms” and “to preserve forests, fauna and flora” per the Federal Constitution of 1988, as well as the precautionary principle. They also allege a violation of Article 225 of the Federal Constitution, regarding the State’s duties to: preserve and restore ecological processes; promote the ecological management of ecosystems; define territorial spaces and its components to be specially protected; and protect fauna and flora. The petition also seeks an injunction to require that Federal Union take the necessary administrative measures to reactivate the operation of the Amazon Fund.
In June 2020 the Supreme Court admitted the lawsuit and requested the federal and state government actors involved to provide information related to: (i) the management and distribution of Fund resources; (ii) activities and projects linked to the Fund that have been implemented and suspended; (iii) data on the deforestation process observed in the Amazon region between 2013 and 2020; and (iv) contracts signed with international donors (Germany and Norway). The Public Attorney’s Office (Advocacia-Geral da União, AGU), in the defense of the Federal Government, presented a response stating that the ADI-O would not be a suitable instrument “for demonstrating discontent or disagreement with the content of government actions.”
On March 18, 2022, the minister and president of the STF, Luiz Fux, admitted seven environmental cases on the agenda for March 30, 2022 (including two climate cases, this case and ADPF760). This move by the STF is considered historical, and was called the “green agenda.” On November 3, 2022, the STF determined that the federal government shall, within 60 days, adopt all of the administrative tasks necessary to reactivate the Amazon Fund. The court decided that the decrees that altered the functioning of the Fund and interrupted the funding of new projects were unconstitutional. The court further found that the unilateral extinction of the committee without creating a substituting body was an omission in the government’s duty to protect the Amazon rainforest.
On August 16, 2023, the Brazilian Supreme Court published the ruling of the case, partially granting the claim. As stated, the court, by a majority, following the vote of Reporting Justice Rosa Weber, ordered the Federal Government to take measures to reactivate the Amazon Fund, within sixty days, and to refrain from engaging in omissive conduct that would paralyze the Fund’s operation. The decrees that altered the Fund’s governance and prevented the financing of new projects were declared unconstitutional, and the previous model is to be resumed. The paralysis of the Amazon Fund was considered an unconstitutional omission by the federal government and an offense to the principle of non-regression. The ruling emphasized that environmental preservation, especially in the Amazon, is an obligation imposed by the Federal Constitution and various international regulations to which the government is legally bound, reducing the space for administrative discretion. It was stated that there is an unconstitutional state of affairs in the Legal Amazon and a destructive and unstructured regulatory state in environmental matters in the region. PSB et al. v. Brazil (on Amazon Fund) (Federal Supreme Court, Brazil).
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