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On June 28, the Supreme Court of the United States announced its decision to overturn the Chevron doctrine. Michael Gerrard and Michael Burger weighed in on the implications for environmental and climate protections through media mentions as well as through quote cards posted on our social media accounts.
In an Atlantic article titled American Environmentalism Just Got Shoved Into Legal Purgatory, Michael Gerrard was quoted saying "Robust environmental rule-making would have to wait. As climate change accelerates at a dangerous pace, neither the Earth nor anyone living here has time for that,” in response to the Supreme Court’s overturning of the Chevron doctrine.
Michael Burger was quoted by Grist, ICT, People’s World, and SourceNM in response to the Chevron decision saying, “What’s at stake [in the decision] is whether courts are going to defer to agencies interpreting statutes, or whether courts are going to stop doing that, and with more regularity take it on themselves to interpret the statutes even when they’re ambiguous, which means they may be in the position of making more policy choices.”
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New on the Climate Law Blog
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- In a Devolving Legal and Political Landscape, Cities are the Federal Government’s Secret Weapon on Climate, by Amy Turner, July 5, 2024
- Sabin Center Files Amicus Brief Supporting New York City’s Motion to Appeal in Local Law 97 Case, by Vincent Nolette, Michael Burger and Amy Turner, June 21, 2024
- ‘Relevant Rules’ as Normative Environment: Harmony vs Cacophony in the ITLOS Advisory Opinion on Climate Change, by Panos Merkouris, June 15, 2024
- Developments in Opposition to Renewable Energy Facilities Through December 2023, by Jacob Elkin and Matthew Eisenson, June 11, 2024
More blog posts are available here.
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Updates to the Climate Case Charts
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Here are highlights of this month's climate litigation update. The full update is available here:
In Settlement with Youth Plaintiffs, Hawai‘i Agreed to Actions to Bring Transportation Sector Emissions to Zero by 2045
On June 20, 2024, the Hawai‘i Circuit Court approved a settlement resolving claims brought by youth plaintiffs against the Hawai‘i Department of Transportation and other State defendants (HDOT). The plaintiffs alleged that the establishment, operation, and maintenance of Hawai‘i’s state transportation system violates the Hawai‘i Constitution’s public trust doctrine and right to a clean and healthful environment. The settlement agreement—which was approved four days before a trial was scheduled to begin—includes a “Recognition of Rights” that enumerates the plaintiffs’ rights and the defendants’ obligations under the Hawai‘i Constitution, state statutes, and Hawai‘i Supreme Court precedent. The agreement requires HDOT to take actions to achieve a “Zero Emissions Target” for ground and sea and air interisland transportation sectors by 2045, as required by a 2018 law. HDOT must set interim greenhouse gas emissions reduction targets for 2030, 2035, and 2040 and must develop “a concrete and comprehensive statewide plan” by May 2025 to reduce greenhouse gas emissions in accordance with this schedule. The settlement agreement specifies elements that the plan must include and provides for specific opportunities for the youth plaintiffs and the public to provide comments and feedback on the plan and on annual updates. The agreement also requires development and use of “a process and criteria for evaluating, selecting, and prioritizing projects” in transportation planning, as well as a “an objective, scientifically-based methodology to assess and report the total, long-term [greenhouse gas] emission and [vehicle miles traveled] impacts of each infrastructure project.” In addition, the agreement requires that HDOT establish a climate change mitigation unit within HDOT and a volunteer youth advisory council. The agreement includes commitments by HDOT to take actions to accelerate expansion of the electric vehicle charging network; accelerate expansion of multimodal transportation choices; develop and implement policies to achieve zero emissions; and increase efforts to sequester carbon. The agreement establishes dispute resolution procedures; once a party complies with these procedures, the party may bring a motion in the Circuit Court to enforce the agreement. The court retains jurisdiction of the case until the earlier of December 31, 2045 or the date on which the Zero Emissions Target is achieved. Navahine F. v. Department of Transportation, No. 1CCV-22-0000631 (Haw. Cir. Ct. June 20, 2024)
Brazil: Supreme Court Orders the Federal Government to Make a Significant Commitment to Combating Illegal Deforestation
The Rede Sustentabilidade (Rede) political party brought a Direct Action of Unconstitutionality by Omission (ADO) with a request for a precautionary measure due to the unconstitutional omission of the President of the Republic, Jair Messias Bolsonaro, and the Minister of the Environment, at the time, Ricardo de Aquino Salles. The party claimed that the defendants had omitted the task of combating deforestation in the Amazon, failing to comply with the provisions of articles 23, items VI and VII, and 225, caput and §1, items VI and VII, of the Federal Constitution. Rede presented the growing deforestation of the biome, especially as of 2019, as evidence of the concerns. The plaintiff also pointed out the delegitimization, by the Executive Branch, of the data presented by the Space Research Institute (INPE) which proves the increase in deforestation, even causing the dismissal of the Institute’s head of research and publication, violating the right to transparency. Rede presented data brought by the non-governmental organization Instituto do Homem e Meio Ambiente da Amazônia (Imazon), that exposed the rampant increase in deforestation that could lead to a “tipping point”, at which point the cleared forest cannot be recovered, seriously impacting climate change in the region. The case also pointed out the cuts in financial transfers by other states to the Amazon Fund due to the alleged omission of the Executive Branch.
In addition, the plaintiff argued that Brazil is failing to comply with objective 15.2 of the United Nations (UN) 2030 Agenda, which refers to combating deforestation by 2020. It claimed that this commitment was also made at national level by Federal Decree 7.390/2010, revoked by Federal Decree 9.578/2018, which provides for an 80% reduction in annual deforestation rates in the Legal Amazon compared to the years 1996 to 2005, a measure that is part of the National Plan on Climate Change.
The plaintiff requested that: (i) that the injunction be granted, ordering the President of the Republic and the Minister of the Environment to promote concrete actions to combat deforestation in the Amazon; (ii) that the defendants be ordered to report on the measures adopted to combat deforestation, following the release of the data by INPE; (iii) that they be ordered to provide annual data on actions to combat deforestation since 2011; (iv) on the merits, that the injunction be confirmed, and the unconstitutional omission declared in order to order the adoption of administrative measures, in accordance with art. 103, §2, of the Federal Constitution; (v) in the alternative, that the progressive omission be declared unconstitutional in order to warn the defendants of their omission; and (vi) if the Court finds that the ADO is inappropriate, that this action be received and processed as an Argument for Failure to Comply with a Fundamental Precept (ADPF) due to the fungibility of actions.
Due to the similarity of the objects of this ADO (54) and ADPF 760, the Rapporteur of both, Minister Carmen Lúcia, decided to judge them together. In a plenary session, the Justice acknowledged and upheld the actions. In her vote, the Justice stated that the right to an ecologically balanced environment is a fundamental right provided for in the Constitution and in international treaties to which Brazil is a party. The Minister emphasized the principle of the prohibition of environmental retrogression and considered that there was a process of normative “termite infestation” taking place silently, through the dismantling of the state’s bureaucratic-normative apparatus. She indicated that this phenomenon is only visible with a general analysis of the existing framework in the country. The Minister recognized the unconstitutional state of affairs regarding the illegal deforestation of the Amazon rainforest and ordered the resumption of the Action Plan for the Prevention and Control of Deforestation in the Legal Amazon (PPCDAm) by the Federal Union and the competent federal bodies. After the Reporting Justice’s vote, Justice André Mendonça asked to see the case file and so the judgment was suspended.
In April 2024, ADPF 760 and ADO 54 were partially upheld. The Court did not declare the state of affairs unconstitutional but recognized the existence of structural flaws in the policy of protecting the Legal Amazon. It ordered the Federal Government to make a “significant commitment” to combating illegal deforestation in the biome and determined that it should adopt measures to implement the PPCDAm, strengthen the inspection bodies IBAMA, ICMBio and Funai, and that the Federal Government present transparent information on the actions and results of the measures adopted in compliance with the STF’s orders and that the data on the measures adopted by the Executive Branch should be submitted to the CNJ’s Observatory on the Environment and Climate Change in the Judicial Branch. The ruling has not yet been published. (ADO 54 (Amazon Deforestation), Federal Supreme Court, Brazil. See also, PSB et al. v. Brazil (on deforestation and human rights, ADPF 760), Federal Supreme Court, Brazil)
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Please send additional material for inclusion in the climate case charts to manager@climatecasechart.com.
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