Economic Undertakings

Climate change litigation intensifies

In an article we published in 2019, we referred to litigation both locally in South Africa and internationally in France where the State was taken to task for not having acted appropriately to improve the quality of the service. air and therefore the health and well-being of its citizens. This trend appears to have accelerated, with some groundbreaking decisions recently handed down by courts in Australia and the Netherlands. In this article, we will deal with these recent decisions as well as a South African case which has been debated but whose judgment is still pending.

the Whitehaven judgment

On May 27, 2021, the Federal Court of Australia issued a judgment in the case of Sharma v Minister of the Environment (the “Whitehaven judgment“). This case involved a challenge to the approval of the Commonwealth Minister of the Environment (“The Minister”) Of the Whitehaven Extension Project, which includes the extension and expansion of a coal mine in Gunnedah.

The case was brought by eight Australian children as part of a class action lawsuit seeking an injunction against the minister. The plaintiffs alleged that the Minister failed in her duty of care to protect Australian children from reasonably foreseeable damage from climate change caused by increased greenhouse gas emissions.

In the Whitehaven judgment, the court agreed with the applicants’ arguments. She ruled that the minister’s prospective approval of the Whitehaven project would directly increase greenhouse gas emissions, linking her actions to the human health risks to children.

The court further found that any reasonable person in the Minister’s position would be able to foresee that Australian children would be exposed to mental, physical and economic damage as well as a high risk of death, if they approved the expansion. of the Whitehaven project. .

Finally, the court ruled that the Minister owed a duty of care and protection to Australian children and this duty must be taken into account when making her decision.

Although the plaintiffs were ultimately not granted an injunction, there was no adverse economic impact in the form of fines and / or penalties imposed on the Minister or the initiating entity. expansion of the Whitehaven project, and the court also did not mandate the minister to make a specific ruling.

However, the case is still important because it demonstrates a case law that prioritizes and obliges state officials, such as ministers, to take into account climate considerations and the future well-being of children and future generations. when they decide to grant or deny extension requests.

the Shell judgment

A decisive judgment of the district court in The Hague, the Netherlands, in the case Milieudefensie et al v Royal Dutch Shell plc was released on May 26, 2021. Unlike the Whitehaven judgment, the Shell decision was directed directly against a company, and not against a government official such as a minister.

The plaintiffs were various environmental groups who brought an action against the Royal Dutch Shell Company on the basis of a violation of the Dutch Civil Code. The plaintiffs’ argument was that the overall greenhouse gas emissions generated by Shell, through its business activities and products, amounted to a violation of the standard of care of individuals and companies to protect the human rights of others. , in particular the right to life.

The claimants have relied on the fact that the Netherlands is a signatory to the 2016 Paris Agreement as well as other evidence related to climate change to claim that Shell has the human rights obligation reduce its greenhouse gas emissions in accordance with the Paris Agreement. The court accepted the claims made by the plaintiffs and ultimately ruled in their favor.

In rendering its decision, the court held that the duty of care described in the Dutch Civil Code must be interpreted in the context of the relevant facts and circumstances of the case presented. The court further ruled that interpreting the Dutch Civil Code would require companies, such as Shell, to respect and defend human rights and that the existential threat posed by climate change must be taken very seriously. The tribunal also held that the execution of actions consistent with the objectives of the Paris Agreement fell within its function and that legal persons had an obligation to limit and address the human rights impacts incurred by their operations, business relationships and supply chain, from the manufacturing stage to the end-user stage.

Based on its reasoning, the court ultimately ruled that “Shell was ordered to reduce the Shell group’s CO2 emissions by 45% net in 2030, compared to 2019 levels, as part of the policy of company of the Shell group. Concretely, this means that Shell will have to change its corporate policy to ensure that it reduces its net CO2 emissions by 45% by 2030, compared to its net CO2 emissions from 2019.

Closer to home

South African courts are also seeing climate change litigation on the rise, especially over air pollution. In May 2021, the Gauteng High Court sitting in Pretoria dealt with a case brought against the government for its alleged inability to effectively deal with air pollution emitted by power plants owned and operated by Eskom Holdings SOC Limited and the refineries that are owned and operated by Sasol Limited.

The plaintiffs in this case are two environmental rights organizations: GroundWork South Africa and the Vukani Environmental Justice Movement in Action. The founding documents for the case cited various respondents, including President Cyril Ramaphosa, Environment Minister Barbara Creecy, Eskom and Sasol.

The case concerns the Highveld priority area in Mpumalanga and parts of Gauteng which are home to 12 Eskom coal-fired power plants as well as an oil refinery and a coal-fuel plant owned by Sasol.

The applicants’ argument alleges that the government violated the right of all South African citizens to clean air, as set out in article 24 of the Constitution. Applicant documents also indicated that in addition to emitting unacceptably high levels of carbon dioxide, Eskom and Sasol’s operations also emit high levels of sulfur dioxide, mercury and fine particles that cause disease. ranging from asthma to lung cancer and contribute to birth defects, strokes and heart attacks.

Responding to some of the aforementioned claims, the minister said she was taking action to reduce pollution levels emitted by Eskom and Sasol. However, she added that environmental concerns must be balanced with the urgent and equally important development needs of the country. The fact that South Africa is still a developing country must also be taken into account by the minister in any decision she takes which could have a negative impact on the environment.

After considering the arguments of all parties, Judge Colleen Collis has now reserved her judgment. So, at the time of writing this article, the question remains pending, but in view of the very recent international case law in both Australia and the Netherlands, it cannot be ruled out that the judge is convinced by these decisions in order to make his own decision on the question before him.

In conclusion, litigation related to climate change is growing and we can expect more local and international cases dealing with the importance of climate change. With the next Conference of the Parties (COP26) due to take place later this year, additional pressure will be exerted on countries to not only honor the commitments made in the Paris Agreement, but also to go further and beyond to reduce the effects of climate change and global warming.

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