competition + environ = misleading ads, greenwashing= unfair competition practices
consumer associations’ allegations of false declarations made by Volkswagen when marketing its EA 189 diesel vehicles in relation to the level of polluting emissions of such vehicles (falsified by a defeat device) …… this triggered the italian cma to investigate. concluded: Volkswagen’s green claims were misleading: volkswagen emphasized its care for the environment, while installing, in cars, a defeat device to falsify the result of the emission tests.
aus cma charged with a misleading claim that it was offsetting carbon emissions from its V8 Championship Emissions by planting 10,000 native trees. The ACCC contended that the claim was ambiguous because it failed to state over what time span the carbon emissions would be nullified <> ikea used the same type of tv ad
italian cma : In Eni’s Diesel+ advertising campaign, a product logo associated the words “green” and “Eni Diesel+.” The Authority found this association had induced consumers to attribute the “green” claims, to the fuel as a whole, when it only applied to a component of the product. held: the ad campaign disseminated “false and omissive information” regarding the fuel’s environmental impact and greenhouse gas emissions reduction, and constitute an “unfair commercial (competition) practice”
aus cma held that Holden’s claim that 17 native trees would offset the carbon emissions was not proven and was misleading…..the cma requested a court-enforceable undertaking/injuction, to halt its false advertising and compensate all customers who had relied on it during 2007 and 2008.
aus cma v Prime Carbon Pty. Ltd., a company that sells carbon credits, for falsely claiming…
Greenpeace Canada complained to the canadian cma, that Shell is making false and/or misleading representations to the public with respect to its Drive Carbon Neutral products as (i) Shell has not demonstrated the validity of their carbon neutral claim and (ii) the offsets used have serious legitimacy concerns. Moreover, Shell is using this greenwashing, to distract from the need to reduce its use fossil fuel products and for Shell to take its own actions to reduce GHG emissions.
Greenpeace Canada complaint to canada cma, that Pathways’ ‘lets clean the air ads’ claims are false and misleading for the following four reasons:
(1) Pathways’ net zero plan fails to incorporate the lifecycle of their produce and does not account for more than 80% of their emissions meaning that their own calculations do not result in them achieving net zero;
(2) Pathways members claim to be “making strides toward net zero” but at the same time are expanding their fossil fuel production;
(3) Pathways has indicated that the only issues facing their carbon capture and sequestration project are related to financing and regulatory approval but the technologies themselves are speculative; and
(4) the representations give the impression that Pathways is a climate leader, but individually and through industry affiliation, Pathways members have advocated, advertised, and/or spoken against climate action in Canada.
Greenpeace Canada has asked the Competition Bureau to have Pathways: (1) remove all the representations about reducing emissions, achieving net zero, cleaning air, and combatting climate change; (2) issue a public retraction of these statement; and (3) pay a fine that is the greater of $10 million or 3% of worldwide gross revenues to organizations for the rehabilitation and clean-up of oil sands production.
the average consumer understood the claim ‘climate neutral’ in relation to all of the defendant’s products. But because the defendant produced non-climate neutral products as well, this was inaccurate. Furthermore, climate neutrality could be achieved through various means. In order for the consumer to make an informed decision, it was essential that they received information on the manner through which climate neutrally was achieved
company wrote ‘carbon neutral’ and further statements which left the consumers with the impression that the production and distribution occurred entirely without CO2-emissions. However, CO2 had been emitted in the process. The Court considered it irrelevant that the emissions had been offset, and that this was disclosed on the company’s website, as the consumer did not have this information at the time of the purchase decision.
The court emphasised that it was essential for customers to know if climate neutrality was achieved through energy reductions in their own operations, the partial use of renewable energies or the acquisition of certificates. reductions are much more important than the mere acquisition of certificates. In order to make an informed business decision, the customer needed information on how climate neutrality was achieved, because customers are willing to pay more if climate neutrality was achieved by reducing emissions instead of merely offsetting them
greenpeace aus, complain to aus cma, that Toyota’s net zero ambitions are contravened by its current car production plans, which do not include a rapid enough transition to electric vehicles, and that the company had lobbied to “halt, weaken, or delay vehicle emissions standards.”
Commerz Real Fund Management S.à.r.l. advertised a financial product on a website. This fund invested in renewable energies projects and could therefore track green electricity and avoided CO2 emissions.This resulted in the target (set value)’ of at least 3.5 tonnes of CO2 avoidance per EUR 10,100 invested per year. On the website, internet users could calculate their personal CO2 footprint. This value was then compared with the desired ‘CO2 offset’. the website said that the goal of was to achieve a CO2 offset of at least 3.0 tonnes per year for every 10,000 euros of invested capital. The calculation basis for that was the CO2 calculator.
court held that the advertising was misleading, as it should have included a clarifying statement that ‘climate neutrality’ was understood in the sense of compensation and that climate neutrality was achieved through financial support of climate protection projects. While the defendant had listed a URL on the advertising site where the reader could learn more about the manner of achieving climate-neutrality, the claim ‘climate neutral’ had been made in the advertising without any mention of compensation,
the Court ruled in favor of the claimant, stating that the ad statements were vague, generic, false, and non-verifiable and needed to be immediately removed from any website, social media platform
malaysia v eu: In 2018, the Renewable Energy Directive Recast (RED II) came into force in the European Union. RED II introduces measures to phase out biofuels which pose high risk significant GHG emissions from indirect land-use change (ILUC), which is defined as occurring where there is “cultivation of crops for biofuels, bioliquids and biomass fuels displaces traditional production of crops for food and feed purposes.” RED II allowed memberstates to regard palm-oil products as nonbiofuels, and so did france and lithuania.
On January 15, 2021, Malaysia brought a claim against the EU, France and Lithuania at the WTO. Malaysia claimed that certain measures imposed by virtue of RED II, are discriminatory against palm-oil-based biofuels and are therefore inconsistent with various provisions under the TBT Agreement and GATT 1994
The EU’s contention is that the measures are not in breach of its WTO obligations. EU has also submitted that the measures implemented are justified as they are intended to pursue EU’s legitimate policy objectives of climate change mitigation, environmental protection, preserving biodiversity, and ensuring energy security and sustainability
the case is ongoing
ecj rejected arguments from three industrial firms—one German, one Dutch, and one Italian—that they should be granted a larger number of free greenhouse gas emissions allowances under the European Union’s greenhouse gas Emissions Trading Scheme (ETS). The Court also instructed the European Commission to revise its approach to determining how many free allowances to grant—a step that has injected uncertainty into the markets built on the ETS. Several features of the ETS are critical to the case:
– some allowances are auctioned to emitters and others are given away for free;
– there are a fixed proportion of free allowances, which are granted only to firms that face competition from non-EU firms—a category that excludes electricity generators;
– the process for calculating the number of allowances—auctioned and free—begins with member states’ submission of emission sources and estimated volumes;
– responding to members states’ overestimation of the allowances due to their industrial firms, the European Commission issued Decisions in 2011 and 2013 to govern the calculation of a “correction factor.”
The Court found that the European Commission’s 2013 Decision established a “correction factor” calculation that ignored relevant information, and on that basis instructed the Commission to revise its approach by March 2017. The Court’s ruling largely ratified the November 2015 recommendation issued in the case by Advocate General Kokott, but deviated in one important respect: whereas Kokott had concluded that too many free allowances were granted to the firms, the ECJ determined that it was unclear whether too many or too few had been granted
ClientEarth, a non-profit environmental law organization and shareholder in the Polish utility Enea SA, has sued (as a shareholder claim) that company, seeking the annulment of a resolution consenting to construction of the €1.2bn 1GW Ostrołęka C coal-fired power plant. the plaintiffs report that the lawsuit claims the consent resolution for construction of the power plant harms the economic interests of the company as a result of climate-related financial risks, including: rising carbon prices, increased competition from cheaper renewables, and the impact of EU energy reforms on state subsidies for coal power under the capacity market. On September 19, 2018, in advance of filing the pleadings, plaintiffs’ lawyers wrote to Enea stating that ClientEarth regarded “the proposed resolution, and the Management Board’s proposal of that resolution, as clearly and obviously harmful to the interests of Enea and its shareholders” and warned that Enea’s ongoing actions in relation to the plant “risk breaching board members’ fiduciary duties of due diligence and to act in the best interests of the company and its shareholders.” The claim was filed on October 24, 2018 in the Regional Court in Poznań (Sąd Okręgowy w Poznaniu).
On August 1, 2019, the court found the company resolution authorizing construction of the power plant to be legally invalid.
the company failed to prove these claims. Instead it was shown that the company did not record all the emissions created along the product’s entire life cycle and emissions from the disposal phase were excluded in the calculations. court held that claims of climate neutrality are inadmissible, if such neutrality was only achieved through the purchase of CO2 certificates (without, for example, reducing the company’s own footprint).
Greenpeace Mexico filed a lawsuit against the Mexican government contesting the constitutionality of two electricity sector policies/acts/agreements, that would limit renewables. Greenpeace Mexico asked the Administrative Court to declare the policies unconstitutional for violating the rights to a healthy environment and sustainable development and for obstructing Mexico’s compliance with its international commitments to tackle climate change……The Court then issued its judgment that the public policies were unlawfully modifying the rules of the energy market, and were violating the right to a healthy environment of Mexicans
mineral extraction company, Segura, S.L., brought suit against a decision of the Council of Ministers of Spain of January 21, 2005, which approved the assignment of emission credits…..The Court found that the decision of the Council was invalid because it did not adduce adequate foundation as to the criteria that were applied to quantify the emission credits assigned to Segura, S.L., and ordered the Council to conduct the assignment of credits anew.
May 2021, four NGOs filed a request for precautionary measures against the Brazilian environmental agency, IBAMA, and Copelmi, a mining company, related to an open-pit coal mining project, which, if approved, will be the largest coal power plant in Brazil. The plaintiffs identified a series of irregularities in the permitting process, including:
(i) inadequate public participation,
(ii) the lack of analysis of the EIA by the environmental agency, and
(iii) the risks and impacts caused by the project.
the Federal Public Prosecutor’s Office (MPF) filed a Public Civil Action (environmental class action) against the Rio de Janeiro’s State Environmental Agency (INEA), and the company EIA, due to alleged irregularities in the environmental licensing process of 36 temporary towers for power transmission…..It argues that both the temporary towers for power transmission lines and the floating Thermoelectric Plants should be analyzed together, and that there was an absence of an Environmental Impact Report, and of a public hearing with the participation of the local community. The MPF points out that thermoelectric enterprises are generators of Greenhouse Gas (GHG) pollution. For this reason, INEA should require prior studies to assess the contribution of the project to climate change, taking into account the objectives of the National Policy on Climate Change – PNMC (Federal Law 12.189/2009) and the goals assumed by Brazil in the Paris Agreement.
This is a Public Civil Action (CLASS ACTION) filed by the Public Ministry of the State of São Paulo (MPSP) against the company KLM – for alleged environmental damage through the landing and take-off of their aircraft.
The company is required to remediate or provide compensation for environmental damage, especially with regard to the emission of Greenhouse Gases (GHG). The initial petition requests an obligation of forest restoration in an area in the same hydrographic basin in sufficient quantity to fully absorb the emissions of GHGs and other pollutants resulting from the activity.
The company argued that it performs its activity in accordance with the determinations of the National Civil Aviation Agency (ANAC), and cannot be held responsible for complying with what is authorized and imposed by the Public Power;
company won case. my opinion is that anac should have been the defendant.
an oil spill in nigeria harmed local communities. all courts denied standi to the claiming ngos, but they appealed, and the nig.supremecourt held: recognizing public interest litigation will help address some other barriers to access to justice, as poor communities without “the financial muscle to sue” which usually and disproportionately bear the brunt of environmental and climate change problems, will have the benefit of public spirited persons and organizations fighting their cause.
On December 12, 2019, the Federal Public Ministry (MPF) filed a public civil action, with a request for urgent relief, to hold the Federal Union responsible for issuing a presidential decree (no. 10.084/2019, which revoked Decree 6.961/2009) approving the agroecological zoning of sugarcane and requesting the National Monetary Council to establish norms for financing activities in the sugar-alcohol sector. The plaintiff alleges that, when editing the new Decree, the Union did not present technical or political reasons for the repeal of the previous rule. Furthermore, the decree can cause irreversible environmental damage to the Amazon, in violation of the paris agreement….. the case is ongoing
The lawsuit concerns Ontario Regulation 386/18 filed on July 3, 2018 by the Minister of Environment, Conservation and Parks. The government did not conduct a public consultation process and filed a claim that the 2018 election was “substantially equivalent” to the 30-day consultation process required by law. Plaintiffs argued that the government was still required to undertake public consultation for the regulation under the EBR and that the regulation is ultra vires because it contradicts the purpose of the “Climate Change Mitigation and Low-Carbon Economy Act,”
On May 19, 2021, three NGOs, ONG Costa Legal, UFECO and Associação Pachamama filed an Public Civil Action (environmental class-action) seeking structural measures to protect the Conceição Lagoon, located in Florianópolis, Santa Catarina……..the class action was filed v the municipality of floranapolis; the the Municipal Environment Foundation (FLORAM); the State of Santa Catarina; the Santa Catarina Environmental Institute (IMA/SC); the Santa Catarina Water and Sanitation Company (CASAN); and the Santa Catarina Public Services Regulation Agency (ARESC).
The lawsuit seeks the implementation of a socio-ecological governance system for the protection, control, monitoring and inspection of the ecological integrity of the Conceição Lagoon. The plaintiffs present the Conceição Lagoon as the subject of ecological rights and claim that, due to the organized irresponsibility of the current institutional structure, there is an unconstitutional state of affairs…..They seek a declaration of the Lagoon as a natural entity with specific rights. Also, they request the recognition of a structural problem which requires the institution of a Judicial Chamber for the Protection of the Conceição Lagoon (CJ-PLC); and, based on its findings, the establishment of a Judicial Plan for the Protection of Conceição Lagoon (PJ-PLC).
three letters dated November 19, 2018, the municipality of Grande-Synthe and its mayor asked the President of the Republic, the Prime Minister, the Minister of State, and the Minister of Ecological Transition and Solidarity to (i) take any useful measure to bend the curve of greenhouse gas (GHG) emissions produced on the national territory to respect the obligations agreed by France; (ii) take all legislative or regulatory initiatives to “make climate priority mandatory” and to prohibit any measure likely to increase GHG emissions, and (iii) implement immediate measures to adapt to climate change in France. They did not receive any answer from the public authorities.
Therefore, on January 23, 2019, they sued the French government and requested the Council of State to annul for excess of power, the implicit decisions of rejection resulting from the silence kept by the President of the Republic, the Prime Minister and the Minister of State, Minister of Ecological Transition and Solidarity, on their requests, and to order them to
(i) take all necessary measures to curb the curve of GHG emissions produced on the national territory to respect at least the commitments agreed by France at the international and national levels;
(ii) implement immediate measures to adapt to climate change in France, and
(iii) take all necessary legislative and regulatory initiatives to “make climate change a priority” and prohibit any measure likely to increase GHG emissions.
plaintiffs stressed the particular vulnerability of Grande-Synthe to the impacts of climate change as a low-lying coastal municipality exposed to sea level rise and flooding.
The Court then noted that France committed itself to a 40% reduction in GHG emissions by 2030, compared to 1990 levels, and instructed the government to justify its ability to meet this goal without stricter measures.
the Court signalled that the decision would be driven by French and European law and not the Paris Agreement. but that the Paris Agreement must be considered in the interpretation of national law.
the Court stated that the fact that the executive branch refrains from submitting a bill to Parliament, concerns the relationship between the constitutional public authorities, and is therefore outside the jurisdiction of the administrative court.
The Council of State issued the final decision on July 1, 2021. It ordered the government to “take all the measures necessary” by the end of March 2022 to bend the curve of GHG emissions to meet climate goals, including a 40% reduction by 2030. The Court annulled the government’s implicit refusal to take necessary measures, noting that the emissions decrease in 2019 and 2020 were not enough to ensure compliance with the required climate goals, and current climate regulations were insufficient to meet the target.
The procedure concerning the evaluation of the implementation of the measures necessary to comply with the decision of the Council of State is currently ongoing.
On September 27, 2017, 124 citizens in Sendai instituted a lawsuit against the Sendai Power Station seeking an injunction to the operation of the power plant. The plaintiffs argued that the operation of the Sendai Power Station violated (i) their personal rights to life, health, and bodily integrity (Jinkaku-ken) due to the health damage caused by the emission of environmental pollutants, (ii) their personal rights to life, health, and bodily integrity due to climate change, and (iii) the right to maintain biodiversity due to the emission of hazardous substances. Firstly, the plaintiffs argued that the emissions of pollutants, such as SOx and NOx, caused significant health damage by increasing the risks of various illnesses. Secondly, the plaintiffs argued that their personal rights were violated as greenhouse gas (GHG) emissions would worsen climate change, which causes extreme events, such as heat waves and heavy rains. To support this argument, they stated that the current use of coal-fired power plants was incompatible with the GHG emissions reduction targets in Japan and was also an obstacle to the achievement of the goals of the Paris Agreement. Thirdly, the plaintiffs claimed that environmental rights, including the right to maintain biodiversity, should be recognized based on Article 13 of the Constitution.
The Court rejected the plaintiffs’ claim by saying that neither the nature nor the level of environmental pollution was serious and that the evidence provided by the plaintiffs lacked objectivity and credibility.
one citizen filed an appeal. In the statement of appeal, the appellant claimed that the district court has made 5 errors. Firstly, he claimed that the court misinterpreted the initial complaint by equating the mental distress with the threat to life and bodily integrity, which was claimed by the plaintiffs. Secondly, he claimed that the court had misunderstood the scientific concepts and terms and thus failed to recognize the risks based on the scientific evidence. Thirdly, he claimed that the court should still have considered the issues of global warming and GHG emissions either as factors to counteract the public necessity of the power plant or as aggravating factors of the tort even if the violation of the plaintiffs’ rights by global warming was not discussed since the CO2 emission by the power plant was against the generally accepted idea in the modern society and national carbon neutral policies. Fourthly, he claimed that the court misinterpreted the expert’s opinion concerning the concentration of PM 2.5 and thus failed to recognize the health risks. Lastly, he claimed that the court ignored the precedents and academic theories related to personal rights and air pollution. He argued that there was no public necessity for a new power plant and the protection of personal rights should be prioritized.
On April 27, 2021, Sendai High Court issued a judgment on the appeal. The parties did not dispute that the power plant could cause the emission of air pollutants. Thus, the issue discussed was whether the threat of damage to the appellant’s life and bodily integrity by the health impact due to the exposure to the air pollutants could be recognized as a violation of personal rights (either the physical rights or the right to a peaceful life) leading to the illegality of the operation of the power plant. The court ruled that while it could not deny that there was abstract danger, there was no sufficient evidence to recognize concrete danger to the appellant’s health.
On December 7th, 2021, Greenpeace France brought an action before the Paris Administrative Court seeking disclosure of the partnership between the Louvre Museum and the TotalEnergies Foundation as well as the list of members of the Louvre Business Circle. The responsibility of public institutions that accept donations from large oil and gas companies is at stake.
TotalEnergies has regularly funded exhibitions at the Louvre Museum for more than twenty years. Until 2019, the Louvre Museum’s activity reports included TotalEnergies in its list of sponsors. In addition, TotalEnergies was one of the founding members of the 2004 Louvre Business Circle, which brings together corporate sponsors. Greenpeace requested copies of the partnership agreements between TotalEnergies and Louvre Museum. According to Greenpeace, in exchange for these donations, TotalEnergies was able to engage in economic and cultural diplomacy with the countries in which it wished to set up operations or develop business.
This request comes five months after Greenpeace requested relevant documents from the Louvre Museum and Quai Branly Museum, which are both public institutions under the supervision of the Ministry of Culture. Under French administrative law, any person or legal entity has a right to access administrative documents and may, without having to justify their request, access documents
While Quai Branly Museum has responded favorably and communicated all the requested partnership agreements signed since January 2015, the Louvre Museum had remained silent. Greenpeace filed a petition for abuse of power against the Louvre Museum for its implicit refusal to disclose administrative documents.
the court ordered the museum to disclose. As a result, Greenpeace France withdrew its claim (which lost its purpose since they obtained the requested documents).
On November 10, 2021, individuals from two global movements that seek to promote climate justice, with a request for a preliminary injunction, against the State of São Paulo, the Governor of the State (João Doria) and the Secretary of Finance and Planning (Henrique Meirelles). The plaintiffs question the adequacy of the administrative acts that structure the institutional design of the IncentivAuto Program
and the State Policy on Climate Change – PEMC (State Law 13.798/2009), and the international commitments made by Brazil, especially under the United Nations Framework Convention on Climate Change – UNFCCC and the Paris Agreement. The plaintiffs highlight the lack of transparency of the Program’s information
According to the plaintiffs, the Program finances, with public resources, the increase of emissions, in disagreement with the protective norms of the climate system. Finally, they request, among other things, (i) the granting of injunctive relief determining the suspension of the IncentivAuto Program and, definitively, (ii) the confirmation of the injunction to declare the nullity of the regulations that structure it and of the other administrative acts resulting therefrom; or, alternatively, to determine that the State of São Paulo includes, in the Program, conditions for the approval of projects related to the adoption of measures aimed at the reduction of GHG emissions and adaptation to climate impacts.
On January 12, 2021, a decision was handed down denying the request for preliminary injunction, on the grounds that there is no evidence of the probability of the right, and that it was necessary to produce evidence to determine whether the environmental damage was greater than the economic development goal established
that the plaintiffs cannot question the convenience and opportunity of the legislation, that the intention to suspend the Program violates the principles of discretion and separation of powers. the court dismissed the claim
The court rejected the suits against several of the airlines [to pcompensate for environ damage upon take off and landing] , on the grounds that it lacked jurisdiction over the claims.
On September 27, 2019, the Arayara Association of Education and Culture and the Poty Guarani Indigenous Association filed a Public Civil Action, with a request for a preliminary injunction, proposed by against FUNAI (the Brazilian agency for Indigenous groups), Copelmi Mineração Ltda., a mining company, and FEPAM (the state environmental agency).
The plaintiffs ask the court to suspend and cancel the environmental permitting process for the Guaíba Mina Project, as there is non-compliance with legal norms and omissions in the Environmental Impact Study (EIA), as well as the absence of prior, free and informed consultation with the indigenous people of the Poty Guarani Indigenous Association, especially the Aldeia (TeKoá) Guajayvi of the MByá Guarani
On February 21, 2020, the court of first instance granted the injunction and suspended the environmental permitting process, until the analysis by FUNAI of the Study of the Indigenous Component (ECI) is included in the EIA, prior to the issuance of an eventual permit by FEPAM, due to the following main reasons: (i) the continuity of the Project’s licensing procedure without the inclusion of the ECI in the EIA and the lack of hearing from the affected indigenous communities will cause irreparable damage, based on ILO Convention 169; (ii) FEPAM should have asked FUNAI opine on the permit before issuing the permit, as there was no analysis by the ECI and prior hearing of the affected indigenous communities; (iii) FEPAM, before issuing the permit, must await the preparation and analysis of the ECI, as well as prior, free and informed consultation with the affected indigenous communities.
upheld the requests of the Arayara Association of Education and Culture and the Poty Guarani Indigenous Association to declare the nullity of the Mina Guaíba Project permitting process,
On December 19, 2017, Gloucester Resources Limited sued the Minister of Planning, appealing the denial of the company’s application to construct an open cut coal mine in New South Wales, the Rocky Hill Coal Project, which proposed to produce 21 million tonnes of coal over a period of 16 years. The Land & Environment Court of New South Wales upheld the government’s denial of the application. The court found that the project was not in the public interest after weighing costs and benefits of the project, including the climate change impacts of the mine’s direct and indirect greenhouse gas emissions. Under Section 4.15(1) of the Environmental Planning & Assessment Act (the EPA), the government is to consider the public interest as part of its review of a development application.
The Department of Planning denied the Rocky Hill Coal Project application in December 2017. After Gloucester Resources Limited appealed the decision, a local community action group called Gloucester Groundswell Inc. was joined to the litigation. The Minister and Groundswell argued that the Rocky Hill Project application should be denied due to the:
1) incompatibility of the proposed mine with the existing, approved and likely preferred uses of nearby land;
2) the adverse visual impacts of the mine;
3) the adverse social impacts of the mine;
4) the uncertainty surrounding the economic and public benefits of the mine which were not shown to be greater than the public costs of the mine; and
5) the Rocky Hill Coal Project is not in the public interest because of the matters in (1) to (4) above and “it is contrary to the principles of ecologically sustainable development because the direct and indirect greenhouse gas emissions of the mine will contribute to climate change.”
As part of its consideration of climate change impacts, the court held that both upstream and downstream emissions of the project should be considered by the Planning Department because the EPA and its regulations require consideration of “the principles of ecologically sustainable development” (“ESD”) which can encompass climate change impacts. The court also pointed to the requirements under the EPA to consider “any environmental planning instrument” and cited language in the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) of 2009 and the 2010 Gloucester Local Environmental Plan as including consideration of ESD and the cumulative greenhouse gas emissions associated with a project. The court recognized the link between these emissions and climate change, remaining unpersuaded by petitioner’s arguments related to market substitution, carbon leakage, the theoretical possibility that other projects would offset these emissions, and the inefficiency of this denial as a mechanism for global abatement of emissions.
Superior Court of Justice determined that burning should be permitted only in exceptional circumstances, and that sugar refining in general must be less polluting, even if that means being more capital-intensive
maybe just looking at google earth i can find cases:
Declaration of illegality of, and injunction to correct, destruction of mangrove area for use as landfill and development site. ngos won.
BITCOIN [NOT ENVIRONMENT] PUBLIC INTEREST – CHINA
In May 2019, Beijing Fengfujiuxin Marketing and Technology Co. Ltd. (“the plaintiff”) and Zhongyan Zhichuang Blockchain Co. Ltd. (“the defendant”) signed three contracts that stipulated the plaintiff would purchase 1,542 micro data storage servers for bitcoin mining ….THE plaintiff sought damages for contract breach.
court held: A contract is void if it harms public interests. To determine the requirements of public interests, the court turned to several “notices” and “announcements” issued by various governmental departments, including the People’s Bank, Ministry of Public Security, NDRC, and Supreme People’s Court, on the prevention and resolution of risks of virtual currency trading. The court found that, according to these policy documents, cryptocurrency-related activities consume an immense amount of energy and can create instability in the financial market, therefore going against public interests. As a result, the contractual arrangements between the parties are invalid because they jeopardized public interests.
In April 2022, a group of approximately thirty health professionals blocked traffic on Lambeth bridge, London. They displayed a banner saying ‘For Health’s Sake. Stop Financing Fossil Fuels’, to highlight the estimated £10 billion in annual financial support the UK government gives to the fossil fuel industry.
the question was whether the grant of an exploration right for oil and gas, resulting in the need to conduct a seismic survey along the South Coast of South Africa was lawful. The court was satisfied that the grounds for review in terms of the Promotion of Administrative Justice Act 3 of 2000 with regards to the granting of the exploration right were met and it was thus set aside, together with the right to renew. The judgment had the effect of setting aside an exploration right that would have enabled Shell to conduct seismic surveys off South Africa’s coastline, in its search for oil and gas reserves.
On November 29, 2021, four environmental and human rights organizations (Sustaining the Wild Coast NPC, Mashona Dlamini, Dwesa-Cwebe Communal Property Association and four others) filed an application in the High Court of South Africa (Eastern Cape Division, Grahamstown) against respondents Minister of Mineral Resources and Energy, Minister of Environment, Forestry and Fisheries, Shell and Impact Africa. The application sought an interdict prohibiting the respondents from proceeding with the seismic survey off the eastern coast of South Africa from 2021-2022. The seismic survey pursued by Shell and Impact Africa followed an exploration right granted on April 29, 2014. It aimed at providing imaging of the subsurface to determine whether there might be energy reserves below the sea floor.
ruled that the exploration right which was awarded without regard to the applicants’ right to meaningful consultation constitutes a prima facie violation of their right which deserves to be protected by way of an interim interdict. The Court agreed that there is reasonable apprehension of irreparable harm and imminent harm of the right as the seismic survey will promote extraction of fossil fuels and adversely impact climate change, the applicant communities’ cultural practices, ocean conservation, and the spiritual and sustainable use of ocean for healing and fishing purposes. It acknowledged the concern of the communities that seismic survey will lead to exploration without climate impact assessment, a development that is inconsistent with South Africa’s agreement at the 2021 COP26 to move away from hydrocarbon-based energy towards climate friendly renewables.
In regard to the climate change impacts of the proposed seismic surveys, the Court referred to the applicants’ submissions regarding observed climate change impacts – including more unpredictable weather patterns and more extreme weather events – as well as expert testimony relating to unburnable fossil fuel reserves (i.e., most fossil fuel reserves should remain unextracted in order to limit the global temperature increase to 1.5 degrees Celsius) and the inconsistency of further oil and gas exploitation with South Africa’s international climate change commitments. The Court also found that the decision-maker had failed to take into account the considerations referred to in the Integrated Coastal Management Act 24 of 2008, which obliges the State, as the public trustee of coastal public property, to ensure that coastal public property is managed and conserved on behalf of all South Africans, including future generations.
Michael John Smith (Ngāpuhi, Ngāti Kahu), climate change spokesperson for the Iwi Chairs’ Forum, a Māori development platform, filed a case against seven high-emitting New Zealand companies in the agriculture and energy sectors, …. Smith claimed that the defendants’ actions constituted a breach of the duty to cease contributing to climate change.
the Court of Appeal dismissed the appeal submitted by Mr Smith and upheld the cross appeal. The court held that tort law was not the appropriate vehicle for dealing with climate change, noting that “every person in New Zealand — indeed, in the world — is (to varying degrees) both responsible for causing the relevant harm, and the victim of that harm.” The court held that a determination that the conduct of the respondent companies was unlawful would introduce an “ad hoc” and “arbitrary regime”, which would lack democratic legitimacy. The Court of Appeal did, however, note that the courts have some role in climate action: “in holding the government to account”
On March 11th, 2020, the NGO Instituto Internacional Arayara and the Fishermen’s Colony Z-5 filed a Public Civil Action (environmental class-action) against Copelmi Mineração Ltda., a mining company, and FEPAM (the state environmental agency). The plaintiffs asked the court to suspend and cancel the environmental permitting process for the Guaíba Mine Project, led by Copelmi, considered the largest open-pit coal project in the country. The project is to be installed in areas inhabited by traditional communities… the court suspnded the mining licence.
The applicants, the Ecology Action Centre and New Brunswick Anti-Shale Gas Alliance, sought judicial review of the Minister of Environment and Climate Change’s decision to approve a highway
The applicants’ application for judicial review of the decision to approve the highway realignment project was dismissed. However, the Court allowed the applicants’ application for judicial review regarding whether the Minister failed to provide the applicants with the written statement of the decision contrary to the requirements set out in the Environment Act to proceed to a hearing on the merits.
The General Law on Climate Change in Mexico was issued in 2012. This law contemplated the Climate Change Fund, a public trust fund created to increase the existing resources to address climate change….However, in 2020 the Mexican Congress reformed the Law and eliminated the Climate Change Fund.
On December 17, 2020, the Mexican Center for Environmental Law (CEMDA) filed a complaint against the amendments, arguing among others, that it violates the constitutional right to a healthy environment. The plaintiff requested an injunction to suspend the effects of the amendments, asking the Court to stop the elimination of the Fund. The injunction was denied.
that it is not up to the judges to evaluate whether a public policy, in a broad sense, is suitable to fulfill a specific purpose, since these decisions correspond to the executive and legislative branches of government.
On December 30, 2021, the arhentina Ministry of Environment and Sustainable Development published Resolution 436/2021 approving the implementation of an offshore seismic acquisition project submitted by the Norwegian company Equinor. This approval of offshore fossil fuel exploration resulted in several lawsuits seeking an injunction to halt the project and an order declaring the approval’s regulations null and void. Some of those lawsuits are, partially, grounded on climate concerns. Other relevant cases can be found here and here.
On January 13, 2022, the Mayor of the City of Mar del Plata filed a constitutional collective action (amparo colectivo ambiental) against the Ministry of Environment and Sustainable Development for its approval of the offshore exploration activities.
On February 11, 2022, the Federal Court of Mar del Plata ordered a halt to the fossil fuel exploration activities. The order does not make any mention of climate change concerns. Instead, the judge focuses on failures regarding procedural rights (participation and information) with explicit mention of the Escazú Agreement, lack of strategic environmental assessment, and possible risk to marine biodiversity. In the decision, the precautionary principle plays a key role.
Flachglas Torgau requested information about Germany’s allocation of emissions licenses during 2005-2007. The requested information was contained in internal documents produced by the Ministry for the Environment concerning legislation process for GHG emissions trading. The Ministry refused this request, citing the confidentiality of proceedings of public authorities. The 2003 Directive concerning public access to information provides that environmental information is generally considered public; however, the court upheld the Ministry’s decision to deny access to the documents requested.
Greenpeace Southeast Asia and numerous other organizations and individuals filed a petition asking the Commission to investigate a general issue—“the human rights implications of climate change and ocean acidification and the resulting rights violations in the Philippines”—and a more specific one—“whether the investor-owned Carbon Majors have breached their responsibilities to respect the rights of the Filipino peopl
The petition names 50 of those entities, all publicly traded corporations, as respondents. It identifies multiple sources of human rights, but draws most heavily on the UN Human Rights Commission’s Guiding Principles on Business and Human Rights.
the Commission concluded that legal responsibility for climate damage is not covered by current international human rights law, but fossil fuel companies have a clear moral responsibility, and the onus falls on individual countries to pass strong legislation …and it may also be possible to hold companies criminally accountable. Also, major fossil fuel companies have an obligation to respect human rights as articulated by the United Nations Guiding Principles on Business and Human Rights.
On May 6, 2022, the Commission on Human Rights of the Philippines (CHR) issued the report include:
1. Carbon Majors’ products contributed to 21.4% of global emissions (p. 99). The Carbon Majors had early awareness, notice, or knowledge of their products’ adverse impacts on the environment and climate system, at the latest, in 1965. (pp. 101-104)
2. Carbon Majors, directly by themselves or indirectly through others, singly and/or through concerted action, engaged in willful obfuscation of climate science, which has prejudiced the right of the public to make informed decisions about their products, concealing that their products posed significant harms to the environment and the climate system. (pp. 108-109)
3. In addition to liability anchored on acts of obfuscation of climate science, fossil-based companies may also be held to account by their shareholders for continued investments in oil explorations for largely speculative purposes. (p. 109)
4. All acts to obfuscate climate science and delay, derail, or obstruct this transition may be a basis for liability. At the very least, they are immoral (p. 115). Climate change denial and efforts to delay the global transition from fossil fuel dependence still persists. Obstructionist efforts are driven, not by ignorance, but by greed. Fossil fuel enterprises continue to fund the electoral campaigns of politicians, with the intention of slowing down the global movement towards clean, renewable energy. (p. 110)
5. The Carbon Majors have the corporate responsibility to undertake human rights due diligence and provide remediation (p. 110). Business enterprises, including their value chains, doing business in, or by some other reason within the jurisdiction of, the Philippines, may be compelled to undertake human rights due diligence and held accountable for failure to remediate human rights abuses arising from their business operations
APPLICANT: Czech Republic
DEFENDANT: Republic of Poland
INTERVENER (in support of the applicant): European Commission
The case concerns the operation of the Turów lignite mine that supplies lignite to the 1984 megawatt Turów power plant, both owned by the Polish Energy Group (PGE). Emitting almost 10 million tons of carbon dioxide each year, the plant has been on the EU’s list of power plants with the highest negative impact on climate for years. The axis of the dispute was the negative impact on groundwater in Czech Republic. In 1994, the mine obtained a concession to extract lignite until 2020. In 2015, it requested an extension of the concession for six years. According to the Polish legislation, the extension was possible without conducting an environmental impact
the Czech Republic took Poland to the Court of Justice of the European Union (CJEU) (the General Court) under Article 259 of the Treaty on the Functioning of the European Union (TFEU), arguing that Poland’s extension of the concession was unlawful because no EIA had been conducted, as required by EU Directive 2011/92. The applicant claimed that the Republic of Poland’s actions were unlawful by: (i) allowing the extension by 6 years of the development consent for the extraction of lignite without conducting an EIA, (ii) excluding the public from the procedure for granting the consent for extraction, (iii) declaring the EIA decision to be immediately enforceable, (iv) failing to allow the intervention of the public and of the Czech Republic in the procedure, (v) failing to enable judicial review of the mining development consent granted, (vi) failing to publish the mining development consent granted. As such, Poland has failed to fulfil its obligations under Directive 2011/92.
The CJEU granted the interim measures by Order of the Vice-President of the Court of 21 May 2021. However, Poland did not comply with that order. On September 20, 2021, the CJEU ordered Poland to pay the European Commission a penalty of EUR 500,000 per day from the date of notification until that Member State complies with the order. On February 3, 2022, the Court of Justice’s Advocate General (AG) Prita Pikamäe stated in his opinion that Poland had violated the EIA Directive.
On February 4, 2022, the Czech Republic informed the CJEU that as a result of the settlement reached with Poland on the dispute, it waived all claims. Consequently, the court struck the case from the register by an order of the same date.
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On June 21, 2022, Conectas Direitos Humanos filed a claim against BNDES (Brazil’s Development Bank) and BNDESPar, the bank’s investment arm responsible for managing its shareholdings in various Brazilian companies held by the bank. According to Conectas, this is the world’s first civil climate action against a national development bank. Although BNDESPar, which is publicly owned, follows an Environmental and Social Policy for Operating in Capital Markets, which bans support for companies with a track record of environmental crimes and modern-day slavery, this policy does not include climate criteria. The company also does not report the carbon emissions associated with its investment portfolio and still maintains equity positions in sectors that are among the most carbon-intensive in the Brazilian economy. The lack of rules or protocols for assessing the impacts of its investments on the climate crisis are in violation of the Brazil’s commitments under the Paris Agreement and the country’s own PNMC (National Policy on Climate Change), among other provisions.
Based on two technical opinions, Conectas asks the court to require BNDESPar and its controller, BNDES, to be given 90 days to adopt transparency measures and present a plan with rules and mechanisms to commit their investments and divestments to the reduction of greenhouse gas emissions by the companies they finance. In practice, these actions will affect the just transition and guarantee the country’s readjustment in the world economy towards sustainable development, which would be the institutional mission of BNDES itself. The plan should align with commitments to reducing GHG emissions by 2030 in the sectors currently financed by the company, in accordance with the international commitments assumed by Brazil. In addition to presenting concrete goals, the plan should be prepared together with civil society, public bodies and academics, and it should provide for environmental and social compensation whenever the targets are not achieved. The case also calls for the creation by BNDESPar of a Climate Situation Room to assess compliance with the targets established in the plan to reduce greenhouse gas emissions, while publishing the progress or setbacks in the sectors that have investments from BNDESPar. One of the requests made in the case is for the Room to be accessed by representatives of civil society, traditional peoples and communities, the Public Prosecutor’s Office, the Public Defender’s Office, academics and members of the Judiciary.
On July 11, 2022, Plan B. Earth, Adetola Onamade, Jerry Amokwandoh, Marina Tricks, and Tim Crosland filed an application at the European Court of Human Rights against the United Kingdom with a request under Rule 41 (priority). The claimants allege that, in breach of its legal obligations arising under the Human Rights Act 1998 and the European Convention on Human Rights, the UK Government is systematically failing to take practical and effective measures to address the threat from man-made climate breakdown. Articles 2, 8 and 14 of the Convention impose on governments the positive obligation to take reasonable and proportionate steps to safeguard the right to life and to family life and to do so without discrimination. That means: (i) aligning emissions reductions to the 1.5˚C Paris objective; (ii) preparing for the impacts of climate change, so far as that is possible (including by providing the public with good information); (iii) aligning public and private finance flows to the 1.5˚C Paris objective; and (iv) making the polluter pay, with effective mechanisms to ensure compensation and reparation for the victims of climate change.
Nevertheless, in March 2022, the UK Court of Appeal refused to hear the Claimant’s case on the basis that the Paris Agreement was irrelevant: “The fundamental difficulty which the Claimants face is that there is no authority from the European Court of Human Rights on which they can rely, citing the Paris Agreement as being relevant to the interpretation of the ECHR, Articles 2 and 8 [the rights to life and to family life]”. It also ruled that the fact that the family life of the three young people bringing the claim is inextricably linked to communities on the frontline of the crisis in the Global South was irrelevant to determining the scope of their right to family life,
the case was declared inadmissible pursuant to procedure which does not involve a public decision. The Court found that the applicants were not sufficiently affected by the alleged breach of the Convention or the Protocols thereto to claim to be the victims of a violation within the meaning of Article 34 of the Convention
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The court concluded that, “the case appears to raise a socially significant issue about the role of superannuation trusts and trustees in the current public controversy about climate change. It is legitimate to describe the Applicant’s litigation as being of a public interest nature.”
On November 2, 2020, the parties reached a settlement where the Australian pension fund agreed to incorporate climate change financial risks in its investments and implement a net-zero by 2050 carbon footprint goal. the settlement in a press release. REST acknowledged that “Climate change is a material, direct and current financial risk to the superannuation fund across many risk categories, including investment, market, reputational, strategic, governance and third-party risks.” To address this risk, Rest agreed to implement a net-zero carbon footprint by 2050 goal for the fund, to measure, monitor and report climate progress in line with the Task Force on Climate-related Disclosures, to ensure investee climate disclosure, and to publicly disclose portfolio holdings, among other commitments.
An Australian pension fund member filed suit against the Retail Employees Superannuation Trust (REST) alleging that the fund violated the Corporations Act 2001 by failing to provide information related to climate change business risks and any plans to address those risks. The case was filed in the Federal Court of Australia in July 2018.
fund beneficiaries are entitled to request information that they need to make an informed decision about the management and financial condition of the fund. The plaintiff requested information from REST regarding the: “
(a) knowledge of REST’s Climate Change Business Risks;
(b) opinion of Climate Change, the Physical Risks, the Transition Risks and REST’s Climate Change Business Risks;
(c) actions responding to REST’s Climate Change Business Risks; and
(d) compliance with its obligations , and failing to disclose the requested information and an injunction requiring REST to provide that information. In the alternative, plaintiff seeks a declaration and injunction in equitable jurisdiction.
e) REST has violated the Superannuation Industry (Supervision) Act 1993 (SIS Act). The SIS Act requires trustees to act with care, skill, and diligence, and to perform their duties and exercise their powers in the best interests of their beneficiaries
Plaintiffs are three environmental organizations, Solutions for Our Climate, Green Environment Youth Korea, and 60+ Climate Action. Defendant is the Minister of Health and Welfare of the Korean Government, who also chairs the Fund Management Committee of the National Pension Service. Plaintiffs are seeking an order against the Defendant to disclose the record in relation to the coal divestment policy discussions in the National Pension Service.
National Pension Service is one of the largest asset owners in the world, managing more than USD 800B. In May 2021, National Pension Service announced that it will no longer invest in coal mining and coal power generation, and that it will prepare a policy setting out the details of the coal policy by 2022. However, after two years of the announcement, National Pension Service has not published its coal policy and has refused to disclose any information on the ongoing discussions.
n March 10, 2022, the political parties Rede Sustentabilidade (Rede), Partido Socialismo e Liberdade (PSOL) e Partido Socialista Brasileiro (PSB) filed a Direct Action of Unconstitutionality (ADI), with a request for a precautionary measure, against the Brazilian Congress. The case is supported by Instituto Internacional Arayara de Educação e Cultura (Instituto Internacional Arayara) as amicus curiae. The case questions the constitutionality of articles 1 to 7 of Federal Law 14,299/2022, which establishes an economic subsidy to small-scale public service concessionaires and creates the Just Energy Transition Program (TEJ). The applicants claim that the articles extend the contracting of electricity generated by the Jorge Lacerda Thermoelectric Complex (CTJL) with subsidies from consumers for another 15 years from 2025, which includes the purchase of energy from the burning of coal and fossil fuels. Considering that the CTJL is the largest emitter of greenhouse gases (GHG) in the southern region of Brazil, the applicants allege that there is a violation of the Federal Constitution and the Paris Agreement (enacted by Federal Decree 9.073/2017), as well as the National Policy on Climate Change ….Finally, the applicants argue that the composition established for the TEJ Council violates the principles of participatory democracy and equality, as there is no equalization of the number of seats allocated to government and civil society organizations and its composition does not reflect the participation of actors related to environmental and labor causes…..and the subsidy to be declared unconsyitutionsl
the Ukrainian public interest organization Environment-People-Law (EPL) filed suit against the government, seeking to compel the dissemination of information on international greenhouse gas emissions trading. EPL specifically sought information regarding an agreement between Ukraine and Japan, where the Japanese government agreed to buy 30 million tons of carbon offsets from the Ukrainian government. EPL contended that both the Aarhus Convention and the Constitution of Ukraine compels public access to the information….upheld by court
On July 31, 2008, a Ukrainian court ordered the Ministry of Environmental Protection to take certain actions aimed at national greenhouse gas reductions, afyer The Ukrainian public interest organization Environment-People-Law (EPL) sought to compel the Ministry to develop a climate change policy for Ukraine; work towards fulfilling its climate change obligations under the United Nations Framework Convention on Climate Change (UNPCCC), the Kyoto Protocol and the National Plan; and raise public awareness on climate change issues.
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Ned Haughton challenged the approval granted by the Minister for Planning for two coal-fired power plants. The challenge was on the ground of climate change…court held: could not review the merits of the Minister’s decision, and could only consider its legality. He concluded that the statute allowed the Minister to weigh competing considerations as he saw fit when determining what was in the public interest.
ClientEarth asserts that an advertising campaign launched in January 2019 under the titles “Keep Advancing” and “Possibilities Everywhere” is misleading in the way it presents BP’s low-carbon energy activities. The complaint alleges that the campaign runs afoul of the Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises, which require clear, honest, accurate and informative communications between enterprises and the public. The complaint asserts that the advertising gives a false impression of the relative scale of renewable and low-carbon energy in BP’s business; misleadingly omits full lifecycle emissions for natural gas and claims an inaccurate emissions saving against coal combustion; and misleadingly asserts that increases in global primary energy demand are both desirable and inevitable for human progress and development.
ClientEarth filed the complaint against BP with the UK National Contact Point for the OECD Guidelines for Multinational Enterprises (UK NCP), an administrative body. The complaint asks BP to take certain steps to correct the allegedly misleading information, including by withdrawing specific advertisements and issuing a statement explaining the withdrawal. The complaint further asks that the UK NCP find BP in violation of the OECD Guidelines if BP does not take the requested steps….. As a result of the complaint, BP has withdrawn the advertising campaign and pledged that it will discontinue
Various NGOs and individuals persuaded a panel of the Austrian Federal Administrative Court to overturn the government of Lower Austria’s approval of construction of a third runway at Vienna’s main airport. The reason: authorizing the runway would do more harm to the public interest than good, primarily because it would be contrary to Austria’s national and international obligations to mitigate the causes of climate change…… however, the constittutional court overtruned the courts decision and the runway was built.
court ruled against greenpeace’s Challenge to the sosbt consultation process fo building new nuclear power plants