|
Here are highlights of this month's climate litigation update. The full update is available here:
Montana Trial Court Ruled that State Law’s Restriction on Consideration of Climate Change Impacts Violated Youth Plaintiffs’ Constitutional Rights
In a lawsuit brought by 16 youth plaintiffs, a Montana trial court ruled that a provision of the Montana Environmental Policy Act (MEPA) prohibiting consideration of greenhouse gas emissions and corresponding climate change impacts in environmental reviews (the MEPA Limitation) violated the plaintiffs’ right to a clean and healthful environment under the Montana Constitution. The court held that the plaintiffs had a fundamental right to a clean and healthful environment, “which includes climate as part of the environmental life-support system.” The court also held that a statutory provision limiting the remedies available to MEPA litigants violated the Montana Constitution because “it removes the only preventative, equitable relief available to the public and MEPA litigants.” The court issued its findings of facts, conclusions of law, and order less than two months after the conclusion of a seven-day trial at which the plaintiffs and plaintiffs’ expert witnesses testified regarding climate science, the effect of greenhouse gas emissions in Montana, and the impacts of climate change on children in Montana. The court found that “[t]he unrefuted testimony at trial established that climate change is a critical threat to public health” and that the plaintiffs “have been and will continue to be harmed by the State’s disregard of [greenhouse gas] pollution and climate change pursuant to the MEPA Limitation.” The court further found that “[w]hat happens in Montana has a real impact on fossil fuel energy systems, CO2 emissions, and global warming” and that the State defendants’ actions to permit fossil fuel activities with no environmental review of greenhouse gas emissions and climate change increased Montana’s emissions and “exacerbate anthropogenic climate change and cause further harms to Montana’s environment and its citizens, especially its youth.” In addition, the court found that the plaintiffs proved standing to bring their claims based on injuries to their physical and mental health, homes and property, recreational, spiritual, and aesthetic interests, tribal and cultural traditions, economic security, and happiness (though the court said mental health injuries “directly resulting from State inaction or counterproductive action on climate change” did not on their own establish a cognizable injury). The court concluded that “[e]very additional ton” of greenhouse gas emissions exacerbated the plaintiffs’ injuries. The court also concluded that there was a fairly traceable connection between the State’s disregard of greenhouse gas emissions pursuant to the MEPA Limitation and the plaintiffs’ injuries and that the plaintiffs proved redressability because the State defendants could deny permits for fossil fuel activities that would result in unconstitutional levels of greenhouse gas emissions. Citing the Montana Constitution, transcripts of the constitutional convention, and Montana Supreme Court precedent, the trial court held that the constitutional right to a clean and healthful environment requires “enhancement” of Montana’s environment and “is complemented by an affirmative duty upon [the] government to take active steps to realize” the right. The court also cited Montana Supreme Court precedent holding that MEPA was essential to State efforts to meet its constitutional obligations. The court concluded that “[b]y enacting and enforcing the MEPA Limitation,” the State failed to meet its affirmative duty. The court further concluded that the MEPA Limitation did not survive strict scrutiny because the State failed to present any evidence of a compelling governmental interest for the provision.” The court noted that undisputed testimony established that the defendants could consider greenhouse gas emissions and climate change and that “clean renewable energy is technically feasible and economically beneficial.” The court further found that even if a compelling interest were established, the MEPA Limitation was not narrowly tailored to serve that interest. The Montana attorney general’s office indicated the State would appeal the decision to the Montana Supreme Court. Held v. State, No. CDV-2020-307 (Mont. Dist. Ct. Aug. 14, 2023)
Korean National Human Rights Commission Ruled Carbon Neutrality Act Unconstitutional
In South Korea, four constitutional complaints have been filed challenging the constitutionality of the Framework Act on Carbon Neutrality and Green Growth for Coping with Climate Crisis (Carbon Neutrality Act). These complaints claimed that the Nationally Determined Contributions (NDCs) set by Article 8(1) of the Carbon Neutrality Act and Article 3(1) of its Enforcement Decree is insufficient to achieve the Paris Agreement climate goals and therefore fails to provide necessary protection of the plaintiffs’ constitutional rights. The National Human Rights Commission (NHRC), the independent body of the Korean Government on human rights matters, in consideration of the significance of these cases, decided to submit an opinion to the Constitutional Court on the human rights impact of climate change and the issue of unconstitutionality of the disputed clauses.
The NHRC submitted the following opinion to the Constitutional Court: “Article 8(1) of the Carbon Neutrality Act and Article 3(1) of the Enforcement Decree of the Carbon Neutrality Act are unconstitutional because they violate the state’s duty to protect fundamental rights, the principle of non-blanket delegation, the principle of parliamentary reservation, and the principle of equality by failing to implement minimum protection measures for the freedoms and rights of current and future generations that are violated by the effects of climate change.” The NHRC opined that legal prerequisites of constitutional complaints—the possibility of violation and present, own, and direct concern—were met.
South Korea’s carbon budget is expected to be exhausted before 2030, forcing future generations to reduce their GHG emissions drastically. Climate change affects freedom in all aspects of human life, a fundamental right that present and future generations must share. Shifting the burden unequally to future generations is discriminatory treatment without a rational basis and violates the constitutional principle of equality. The Constitution does not explicitly prescribe the state’s obligation to reduce GHG. However, constitutional interpretation can derive a state’s obligation to protect and ensure the safety of its citizens from disasters and danger caused by climate change. The law only sets a lower limit of 35% reduction from the 2018 level by 2030, which falls far short of the internationally agreed targets and fails to provide sufficient protection between 2031 and 2050. Therefore, the state has failed to provide minimum measures to protect the petitioners’ fundamental rights.
Article 8(1) of the Carbon Neutrality Act sets a lower limit of 35% reduction from the 2018 level by 2030. Article 3(1) of its Enforcement Decree sets a reduction target of 40% from the 2018 level by 2030, and both targets fall short of the global reduction pathway presented by the IPCC. This means the law does not provide any meaningful standard for establishing an effective NDC. Further, the law not only fails to provide any guidance on how the reduction pathway should be drawn up to 2030 but also is entirely silent on the reduction plan from 2031 to 2050. Thus, the law violated the principle of non-blanket delegation and the principle of parliamentary reservation. Opinion of the National Human Rights Commission on the Constitutional Complaints on Constitutionality of Carbon Neutrality Act (National Human Rights Commission, South Korea)
|
