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Extending the reach of environmental litigation

Coroners, deportation, and the Amazon

In the classic paradigm for environmental litigation that has been developing over the past several decades, the claim is that the government is not doing enough to protect its citizens from the clear and increasingly dangerous impacts from climate breakdown.  Well known examples include the Dutch case where the environmental group Urgenda, on behalf of 900 Dutch citizens, sued the Dutch government.  In 2019, the Dutch Supreme Court ordered the Netherlands to slash greenhouse gas emissions by at least 25 percent from 1990 levels by the end of 2020.

In Ireland, the Friends of the Irish Environment filed a lawsuit claiming that the government failed, as a matter of law, to fulfill its obligations to address actions necessary to mitigate climate breakdown in its National Mitigation Plan.  In July 2020, the Supreme Court ruled that the Plan was so vague as to be illegal.  The Court quashed the Plan and ordered that a new plan be drawn up by the new government.

These and a growing number of environmental law cases focus on climate change and most are filed by citizens, including children, young people, and indigenous communities.  The defendants are usually governments but also corporations.  A recent UN report (2020) indicates that the number of climate change litigation cases has surged in the last four years and now stands at 1,550 in 38 countries (39 including the courts of the European Union).  As of 1 July 2020, some 1,200 of these cases were filed in the United States, and 350 in all other countries combined.

Now we have three even more adventurous forays into how law can protect citizens from environmental impacts.

Coroner Inquest

In the UK an inquest into the death of a 9-year old girl, Ella Kissi-Debrah, found that she had suffered from numerous seizures; was hospitalized over 30 times in three years; had been placed in a medically-induced coma for three days, to stabilize her condition; and, by 2012 had to be carried by piggyback to get around.  She died in 2013.  Her family lived 25 metres from the heavily-trafficked South Circular Road.

An initial inquest in 2014 found that she died from respiratory failure.  Her mother fought for a second inquest where expert evidence was presented about the prevalent, elevated and dangerous air pollution in her neighborhood, primarily from traffic.

In December 2020, the coroner in that second inquest held that Ella died from asthma, and that exposure to excessive air pollution had contributed to her death.   This was the first time in the UK where air pollution was listed as a cause of death.

It also can be noted that communities of color in many large urban areas disproportionately suffer from heavily polluted air and asthma. See Hernan, Stop Smoking Diesel Trucks, below.

 

 

 

 

 

 

Ella Kissi-Debrah

 

Extradition

An Appeals Court in Bordeaux, France overturned an expulsion order against a 40-year old Bangladeshi man with asthma.  The man’s lawyer argued that he risked severe deterioration in his asthma, and possibly premature death, because of the dangerous levels of pollution in his homeland.  Bangladesh ranks 179th in the world for air quality and has concentrations of fine particles six times the World Health Organization’s standards.

The Appeals Court held that the man could not be extradited from France because he would face “a worsening of his respiratory pathology due to air pollution” in his country of origin.

It is suggested that this is the first time the environment was cited by a court in an extradition hearing.  The implications are significant in light of the fact that environmental degradation, including climate breakdown, is expected to lead to mass migration in the future, with possibly millions of environmental refugees.

Amazon Rainforest

On a different note, with an international dimension, indigenous leaders in Brazil and human rights groups have petitioned the International Criminal Court (ICC) in The Hague, Netherlands, to investigate the Brazilian president Jair Bolsonaro for crimes against humanity.  They claim that Bolsonaro has dismantled environmental policies and has violated the indigenous rights, which it is claimed constitute ecocide.

Since Bolsonaro became president deforestation has risen by 50% in two years, invasions of indigenous territories has increased 135% and at least eighteen people have been murdered in land conflicts just last year.

While the ICC has focused on cases of genocide and war crimes, in 2016 it decided to examine crimes in other areas, including environmental and cultural cases.  It remains to be seen if the ICC will exercise jurisdiction over the claims.

 

Sources:

John Schwartz, “In ‘Strongest’ Climate Ruling Yet, Dutch Court Orders Leaders to Take Action,” The New York Times (20 Dec 2019). bit.ly/3iWD2YP

Robert Emmet Hernan, “Irish Supreme Court Decision in a Climate Case: When Vagueness Became Illegal,” ieBLOG (October 2020) in irish environment magazine at bit.ly/3iQ3XoR

“In battle against climate change, courts become a new frontier,” UN Environment Programme (26 January 2021).   https://bit.ly/2MgCOQ7

Harry Cockburn, “Ella Kissi-Debrah inquest: Coroner says air pollution contributed to death of nine-year-old in landmark ruling,” UK Independent (16 December 2020). bit.ly/3cjaNCl

Robert Emmet Hernan, “Stop Smoking Diesel Trucks,” ieBLOG section of irish environment magazine (May 2017).  www.irishenvironment.com/blog/stop-smoking-diesel-trucks/

Diane Taylor, “Air pollution will lead to mass migration, say experts after landmark ruling,”  The Guardian (15 Jan 2021). bit.ly/3pmiSKa

Robert Emmet Hernan, “Climate change -> drought => armed conflict + political instability = mass migration, as in Syria,” ieBLOG section of irish environment magazine (October 2015). bit.ly/2NO785e

Flávia Milhorance, “Jair Bolsonaro could face charges in The Hague over Amazon rainforest,” The Guardian (23 Jan 2021).  bit.ly/3iN6m3G

Editor’s Update: 3 February 2021:  Kim Willsher, “Court convicts French state for failure to address climate crisis,” The Guardian (3 February 2021). bit.ly/2LlWYb1

 

What’s New on the Energy Front?

Zombie Energy

Sometimes a phrase just jumps out at you and your head snaps back in admiration.  That happened while reading an article about a new UN report on Production Gap. The report focuses on the discrepancy between countries’ planned fossil fuel production and global production levels consistent with limiting warming to 1.5°C.  In short, the world needs to decrease fossil fuel production by about 6% per year between 2020 and 2030 in order to limit global warming to 1.5°C.  Yet countries are instead planning on an average annual increase of 2% in fossil fuel production

Here’s the rub, and the origin for “zombie energy.”

The Covid-19 pandemic, with its protective lockdowns and restrictions, has led to a reduction in economic activity, which has in the past relied heavily on fossil fuels to power the economy.  With less to produce, fewer places to go to, and fewer people to share with, there has been a reduction in this reliance.  It is estimated that there will be a global 7% decline in production of fossil fuels for 2020.

Of course we saw a similar decline in greenhouse gas (GHG) emissions due to economic downturn in the 2008 recession, and a return to rising GHGs as the economy recovered.  We can likely expect the same turn of events once the pandemic is controlled.

So the challenge is how to hold steady on the pandemic-induced fossil fuel decline as the economy recovers.  The key is how the government stimulus funds and recovery measures are spent and deployed.  Unfortunately, it has been estimated that the G20 governments have already committed almost twice as much money for recovery to fossil fuel production than to renewable energy.

As Ivetta Gerasimchuk of the International Institute for Sustainable Development, a lead author of the Production Gap report, argued:  “Alas, in 2020 we saw many governments doubling down on fossil fuels.  Instead of governments letting these fossil fuel projects die, they resurrect them from death – it’s kind of zombie energy.”  The Guardian, below.

Indeed it is.  And we know that zombies are not easy to keep in the ground but that’s where they belong with all other stranded assets.

 

Sources:

SEI, IISD, ODI, E3G, and UNEP. (2020). The Production Gap Report: 2020 Special Report. productiongap.org/2020report

Damian Carrington, “World is ‘doubling down’ on fossil fuels despite climate crisis – UN report,” The Guardian (2 Dec 2020).  https://bit.ly/38KbalI

 

 

Government takes abstraction to the next level

New Water Bill is strong on verbiage, weak on commitment

 

The words “drought” and “Ireland” are rarely uttered in the same sentence, but in the coming decades climate change may turn the Emerald Isle yellow. The summer of 2018 was one of the hottest and driest on record in Ireland, and a drought last spring caused annual output from the grain sector to drop from 2.3 million tons to under 1.9 million. These problems will intensify as the population grows and the planet warms. Climate change is projected to aggravate the precipitation disparity between the humid north and west and the drier south and east, jeopardizing the water supply of Dublin and other municipalities on the east coast. Water volume in lakes, rivers and streams will decline, and groundwater subsidence may deplete residential wells.

Forestalling this crisis will require two key measures: acquiring data on water usage across the Republic and using this information to improve regulation of abstraction (the removal and transportation of surface water and groundwater). Two weeks ago, the Government took a small step toward accomplishing these goals. The Joint Committee on Housing, Local Government and Heritage conducted its first round of pre-legislative scrutiny on the proposed Water Environment Bill. One of the aims of the Bill is to facilitate the Eastern and Midlands Region Water Supply Project, which would pipe water from the River Shannon to Dublin and other parts of the East and the Midlands. This would forestall the water shortage in the east but imperil agriculture and ecosystem health on Lough Derg and the Shannon.

 

 

 

 

Derg Doom: proposed water abstractions threaten Lough Derg and the River Shannon

 

The Bill proposes a three-tiered system: a set of rules issued by the EPA for all abstractors, registration for those who withdraw over 25 cubic meters per day, and licenses for those who take over 2000 or operate in “areas of significance.” The Bill defines a “significant” abstraction as one that puts a water body at risk of “failing to achieve its environmental objectives.” It cites an EPA estimate that only 6% of Irish water bodies are vulnerable to abstraction but does not mention that only 53% of rivers and 50.5% of lakes are in “good” condition according to EPA standards. Not all of these compromised water bodies are necessarily vulnerable to abstraction, but the lack of data makes potential impacts hard to ascertain. Given the documented repercussions of abstraction on water quality and biodiversity, more than 6% of water bodies may be at risk and should be monitored for adverse effects.

Unfortunately, the Bill’s thresholds are so high that the vast majority of abstractions would escape scrutiny. None of the 21 water bottling plants in Ireland meet the threshold for licensing, and only five clear the bar for registration. High thresholds will prevent regulators from getting an accurate picture of water usage, endangering both the environment and the long-term water supply. They may also place Ireland in breach of the EU Habitats Directive and the Environmental Impact Assessment Directive. This is because the dearth of information on abstractors will prevent the Government from fulfilling its legal obligation to conclude “beyond reasonable doubt” that abstractions will not harm EU protected sites.

Ireland can look to its neighbors to improve its abstraction regulations. Scotland and Northern Ireland have aligned their regulations with the recommendations of the EU Water Framework Directive. They have also ensured public accessibility to licensing information and brought abstraction under the control of a single enforcement agency. In Northern Ireland abstractions above 10 cubic meters must be registered, while those over 20 cubic meters require a license–one one-hundredth of the figure proposed in the Water Environment Bill.

In addition to strengthening its abstraction regulations, the Irish government should work to increase drought resiliency by creating a publicly accessible drought monitor and hydrological outlook, which are both available in many other countries. It should also improve infrastructure. Much of Ireland’s hydraulic system is underfunded and decrepit. Irish Water, the public water utility, has begun revamping it, but the government should allocate additional funds for refurbishment.

Fixing the chronic leakages in the Dublin pipe system would likely obviate the need to divert water from the River Shannon. Indeed, the Dublin hydraulic system is in such bad repair that about half of this diverted water would be lost before it arrived.

Irish Water should also begin stress testing its systems against the extreme droughts Ireland may face in the future. This push to overhaul water policy will face resistance from the industries and citizens who have long held nearly unchecked abstraction rights. It will likewise inflame tensions between the urbanized east and the monetarily poor but water-rich west. However, these complications demonstrate the need for action, not reticence. Conflict over water rights will escalate as demand increases and precipitation declines, but Ireland can meet the challenge if it acts immediately.

 

UPDATE (6 Dec 2020): See Harry McGee, “Legislation diverting Shannon water to Dublin flawed, Government told:  Plans breach EU rules in six major areas independent legal advisers warn,” The Irish Times (2 Dec 2020). bit.ly/36LFQDu

James FitzGerald is Senior Intern at irish environment magazine and a student at Williams College, Massachusetts, where he majors in history and Chinese. He is currently writing a thesis on the history of environmental policy in the Brazilian Amazon.

Ireland’s 2020 Proposed Climate Action Bill: Its Latest Faux Pas

Deja Vu All Over Again

 

Yogi Berra, the 15-year All Star catcher for the New York Yankees, was noted for his loose use of language.  Some memorable phrases are:  “It ain’t over ’til it’s over.” “You can observe a lot by watching.”  And: “It’s deja vu all over again.”  Of course déjà vu means, literally, ‘already seen.’

With regard to the recent Climate Action bill introduced by the new coalition government in Ireland, Berra’s phrasing is right on target.  As John Sweeney, the leading Irish and international climatologist, noted recently: “I’m looking at this new bill with a sense of deja-vu because it contains a lot of the weaknesses of the previous bill.”  Irish Independent, below.

 

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Before we explore one of those familiar weaknesses, it can be acknowledged that this 2020 bill offers some significant improvements over the existing Climate Action and Low Carbon Development Act (2015).  Instead of taking one step backward to go two steps forward, unfortunately the government is taking one step forward to allow it to go two steps backward.

The forward step is that the 2020 bill relies on a specific target of net zero, or carbon neutral, emissions by 2050, while the 2015 act has no specific target but only a commitment to “pursue and achieve” a sustainable, low-carbon economy by 2050.  And the 2020 bill provides for 5-year carbon budgets as a mechanism to reach the target, while the 2015 act relied on illusive “roadmaps” for finding its way.  There are other advances, like an expanded, though still suspect Climate Action council.

The serious weaknesses in the bill have been examined in thoughtful detail by the environmental NGO, Stop Climate Chaos, in a briefing document and through a Webinar featuring John Sweeney and the noted environmental lawyer Andrew Jackson of University College Dublin.

Sweeney points out a number of “ weasel words” in the bill, including the over reliance on all the things that “may” (but then do not necessarily “have to”) be done.

 

 

 

 

 

 

 

We want to focus on a particular phrase that was troubling in 2013 when the first climate act was under development.  It is relied on in the current 2015 Climate Act and resurfaces in the 2020 bill, where it is used 11 times by Sweeney’s count.  The phrase is “have regard to.”   For example, the bill provides that: “A Minister of the Government shall, in the performance of his or her functions, have regard to a carbon budget that has effect under subsection (7) or (11), as the case may be.”  At Section 6B, Approval of Carbon Budget, page 24.

In a video interview with Sweeney in the Podcast section of the April 1, 2013 issue of this magazine, we talked about the usage of the phrase, “Have regard to.”  This conversation and issue was explored further in the Reports section of the same issue in Agriculture Dictates Ireland’s Climate Policy:  The Government’s Climate Bill and the National Economic & Social Council Report, where the following analysis arguably remains relevant:

While Explanatory Notes are added to the text of the [2015] Bill, they do not add much to explain the government’s rationale for  the approach taken in the Bill.  As an example, to “explain” Head 4, the critical section of the Bill, it is noted that Ministers will “consider and have regard to” the ultimate objective of the UN Framework Convention on Climate Change (UNFCCC) and any other commitment under EU or international laws and then the Note quotes Article 2 of the UNFCCC. The explanation for the core of the Bill is simply a restatement of the 1992 UNFCCC, almost as if nothing has advanced since then, at least for this government.

Furthermore, the phrase “having regard to,” used frequently in the Bill, has an unfortunate history in Irish case law.  In the Podcast video interview with John Sweeney in the April issue of irish environment, he refers to a High Court case that provided legal interpretation of the phrase “have regard to,” which phrase is used frequently in the Climate Bill.  As Sweeney explains, the phrase means basically that the Ministers have to read the documents but are not bound by these other considerations in developing their climate plans.

The case is Tony McEvoy and Michael Smith v. Meath County Council (see below in Sources).  In that case it was alleged that Meath Council failed to ‘have due regard to” the Strategic Planning Guidelines for Greater Dublin Area in adopting its county development plan.  While the High Court found that certain provisions of the county plan did not comply with the Guidelines, and departed from the Guidelines’ policies and objectives, nevertheless the Council had “regard to” the Guidelines.  The Court held that the phrase “have regard to” means that the Council could not simply ignore the Guidelines and proceed as if they did not exist, but based on case law the term “regard” is permissive and means that the Council was “not bound to comply with the Guidelines.”

Relying on this term does seem to send a message that any commitment under the Bill is indeed permissive and Ministers need not worry about actually complying with any other considerations in developing their plans.

Using such weasel words to avoid concrete commitments suggests the Irish government, of whatever composition, has learned nothing in the intervening period since 2015, despite the critical action plans detailed by the environmental NGOs, the Citizens’ Assembly, the Climate Change Advisory Council, and the Joint Oireachtas Committee on Climate Action.

Plus ça change, plus c’est la même chose

 

Sources:

Department of the Environment, Climate and Communicaiotns, Climate Action and Low Carbon Development (Amendment) Bill 2020 (October 2020).  bit.ly/37Uhusp

Caroline O’Doherty, “Expert says climate bill full of ‘weasel words, get-out clauses and loopholes’,” Irish Independent (14 Oct 2020).  bit.ly/3jvvuLa

Stop Climate Chaos Coalition Briefing on the Climate Action (Amendment) Bill 2020 https://bit.ly/3e5jz5D

Interview with John Sweeney on the Irish Climate Bill and National Economic & Social Council report on climate policy
in Podcast section of irish environment magazine (April 1, 2013) at bit.ly/37QCKiK   See at 14:45 of interview.

Robert Emmet Hernan,  Agriculture Dictates Ireland’s Climate Policy:  The Government’s Climate Bill and the National Economic & Social Council Report in Reports section of irish environment magazine (April 1, 2013) at bit.ly/3msBNB2

John Gibson, “Ireland Climate Bill Slammed as ‘Full of Loopholes.” DesmogUK  (20 Oct 2020).  bit.ly/34yf6Fy

Irish Supreme Court Decision in a Climate Case

When Vagueness Became Illegal

 

The question before the Irish Supreme Court was whether the government failed, as a matter of law, to fulfill its obligations to address actions necessary to mitigate climate breakdown in its National Mitigation Plan (NMP or Plan).

The Supreme Court’s answer was, Yes, it did fail.  And the analysis to get to that simple answer was quite straight forward.

 

 

 

 

Friends of the Irish Environment had won the right to take an appeal, without going through the Court of Appeals, on the High Court decision that the government did enough to address climate change.

The Supreme Court closely examined the national Climate Action and Low Carbon Development Act (2015) and determined that it required that the government specify what actions were necessary to reduce greenhouse gases (GHGs) by 2050.

Then the Court examined the National Mitigation Plan that was required by the Climate Act of 2015 to establish the necessary actions.  What the Court found was a void, an empty vessel.  There was nothing in the Plan that approximated specific actions. It was all vagueness.

And that was not, legally, enough.

So the Plan was quashed and a new Plan with concrete, specific steps will have to be drawn up by the new government, which now includes the Green Party that has lots of specific ideas and policies to satisfy the requirements of the Climate Act of 2015.  Of course the environmental community, the Citizens Assembly, the Oireachtas Joint Committee on Climate Action, and the Climate Change Advisory Council have been advancing ideas and policies for a number of years.  It’s just that the government did not bother to listen to this wide public discourse.  If the government refused to listen to the public, who was it listening to?   What interest groups caught the ear of the government?

The basic legal takeaway from the Supreme Court decision is that vagueness can be illegal.  In the context of climate breakdown, the decision is historic.  No longer can the government try to excuse itself by saying, off-hand, it can be a laggard at times.  More, much more, is now required.

 

 

 

 

 

 

But there are also some interesting questions arising from possible wider implications of the decision.

The first two sentences of the decision announce a sea change for any discussion about climate change in Ireland, and arguably can be applicable to other areas of environmental law, such as biodiversity.

The Court announces that: “Climate change is undoubtedly one of the greatest challenges facing all states.” (Emphasis added)  And then adds that, “Ireland is no different [from all those other states].”

The Court lays out the facts that it finds to be relevant and established by the evidence, and that serve as the basis for applying the law.  See Section 3, “A Brief Overview of the Science.”  These factual findings include “the current scientific understanding of climate change itself…”.  At 3.1.  Beside the basics about how real climate change is, how dangerous it is, and how pressing it is, the Court acknowledges the reality of tipping points and the need to reach net negative carbon dioxide emissions at some point during this century.

While in most cases a court’s factual findings are applicable only to the case before it, as disputes and conflicts differ in their predicate facts, i.e., the facts to which the law is applied.  But in the climate case, it is an interesting notion that the Supreme Court’s finding of facts should be dispositive with regard to any claims that climate change is not real or is not of the most serious import.  Is any further litigation on climate change bound by these findings of fact, so that a litigant need not introduce evidence (through live testimony or affidavit of experts) on the realities of climate change?  Could the next litigant simply recite the Court’s findings of facts in this climate case?  If there were a subsequent case revolving on climate change, should any litigant be allowed to argue that climate change is not real or serious?  Of course all these notions assume there is no significant change in the science supporting the facts on climate change.

Even if these findings of fact do not carry any weight in other litigation, they should weigh heavily in any public discourse on climate change.  For instance, how could RTE or any other media entertain persons or reports or opinions that contradict the Court findings.  Hasn’t climate denialism in Ireland suffered a mortal blow.

And the argument that Ireland is different because it is a small nation or without resources to affect global climate is now also badly wounded by the second sentence of the decision:  “Ireland is no different.”

A final implication of the Court’s decision is found in its analysis of what constitutes specificity.  The Court held that

“the level of specificity required of a compliant plan is that it is sufficient to allow a reasonable and interested member of the public to know how the government of the day intends to meet the NTO [National Transitional Objective]so as, in turn, to allow such members of the public as may be interested to act in whatever way, political or otherwise, that they consider appropriate in the light of that policy.”  At 44.    On one level, this is an extraordinary, and enlightened, standard.  The Court finds the public to be a trustworthy source for judging whether the government is telling them what they need to know in order to take informed decisions about the matter at hand.  That is a welcome sense of participatory democracy, and so much more welcoming than smoke-filled, backroom politics.

Sources

Appeal No 205/19, Friends of the Irish Environment CLG and  The Government of Ireland, Ireland and the Attorney General (31 July 2020). bit.ly/2S57p2m

Robert Emmet Hernan, Attacking the Irish Government’s abysmal National Mitigation Plan: The Friends of the Irish Environment eNGO raises the stakes in court in ieBLOG section of www.irishenvironment.com (1 February 2019).

A Tipping Point on Climate Change in Ireland? in Reports section of www.irishenvironment.com (1 January 2018).