Family Farmers and Greenpeace Germany

Whether the defendant’s argument is true—i.e., that there is no causal relationship between CO2 emissions and the increase in the water level in the lake—can be determined only on the basis of the evidence already taken. It is the Senate’s opinion that the case is not ready for judgment without taking evidence as ordered, and therefore the defendant has not been subject to a violation of its constitutionally protected right to be heard in court or its right to effective legal protection.

The Senate has modified the deadline given in the Indicative Court Order and Order for the Hearing of Evidence of 30 November 2017: it has set a new deadline of 2 March 2018 for the plaintiff to submit the advance payment, in the amount specified in the Court Order, to the central court cashier’s office.

This corresponds to the deadline, extended in the Court Order of 21 December 2017, for the parties to reach an agreement and designate suitable experts. If it is already apparent beforehand that the parties cannot agree on suitable experts, the Senate requests a notice to this effect.

FAMILY FARMERS AND GREENPEACE GERMANY

33. In Family Farmers and Greenpeace Germany v Germany, the Administrative Court of

Berlin dismissed a case seeking to compel the German government to comply with the government’s cabinet decisions to reduce greenhouse gas emissions by 40% by the year 2020. The court ruled that climate policy generally is subject to judicial review and must not so be inadequate as to not fully protect fundamental rights such as the right to life and the right to property, but declared that the 40% target set by the government was not legally enforceable. Those bringing the suit put forth a view that the failure by the government to adhere to its own targets of 40% reductions in within the Climate Protection Plan would directly violate their legally recognised rights under the German Constitution. However, in late 2019 the Court decided to the contrary holding that the plaintiffs had not convincingly shown that their rights had been violated by the failure of the government to comply with its targets, but it did assert that the same government must undertake measures to provide for the protection of fundamental rights potentially threatened by climate change, most notably the rights to life and property. A summary of the key elements of the decision follow:

A German court has held that the German government’s climate policy is judicially reviewable and must not be so inadequate as to fail to protect fundamental rights such as the rights to life and property. However, the court dismissed an action by German families to challenge the government’s failure to adhere to a cabinet decision to reduce greenhouse gas emissions by 40% by 2020, concluding that the target was not legally enforceable.

In December 2014, the German cabinet set a goal of reducing national greenhouse gas emissions by 40% compared to 1990 levels by the end of 2020 (the Climate Protection Plan). According to the government’s 2018 official climate protection report, however, the government will likely only achieve a reduction of 32% from 1990 levels by the end of 2020. In October 2018, three German families and Greenpeace Germany filed suit in the Administrative Court of Berlin seeking to compel the German government to adhere to the 40% reduction goal. The German families are comprised of organic farmers who claim they are already experiencing the impacts of climate change. Plaintiffs argued that the

34. government was bound by the Climate Protection Plan, and alleged that the government’s failure to adhere to the 40% target encroaches on their human rights in violation of the German Constitution -- the Grundgesetz -- under Article 2(2) (right to life and health), Article 12(1) (occupational freedom), and Article 14(1) (right to property). They further alleged that failure to meet the original 2020 goal violates Germany’s minimum obligations under the EU Effort Sharing Decision (406/2009/EC).

According to Greenpeace, plaintiffs asked for court orders holding that the government is obliged to: 1) implement the national Climate Protection Program 2020 by updating or supplementing appropriate measures to meet the 2020 target; 2) compensate for the excess of approximately 650 million tons of CO2 equivalent between 2007 and today due to insufficient implementation of the 2020 target; and 3) supplement the national Climate Protection Program 2020 to meet the reduction targets set out in European environmental law. Greenpeace reports that this is the first climate lawsuit to refer to the publication of the UN’s Intergovernmental Panel on Climate Change’s (IPCC) Special Report on 1.5°C.

On October 31, 2019 the Administrative Court of Berlin dismissed the case, concluding that the 2020 target, as a cabinet decision, was not legally binding. The court further held that plaintiffs had not conclusively demonstrated that the government had violated its constitutional obligations by setting inadequate climate protection targets. However, the court did hold that the government’s climate policy is subject to judicial review and must be consistent with the government’s duties to protect fundamental rights under the German Constitution. The court also determined that the government must undertake measures to provide adequate and effective protection of the fundamental rights potentially affected by climate change, including the rights to life and property. Nonetheless, the court concluded that the government is entitled to wide discretion in deciding how to fulfill these obligations, so long as precautionary measures to protect fundamental rights not are wholly unsuitable or wholly inadequate. In the court’s view, the government’s current protection policy, which will lower emissions by 32% rather than 40% by the end of 2020, is within its discretion.

Moreover, the court noted that the EU is only aiming for a 40% reduction in greenhouse emissions by 2030 and has pledged a reduction of only 20% below 1990 levels by 2020. In this context, the court concluded that the German government’s reduction target of 32% by

AUSTRIA

VIENNA-SCHWECHAT AIRPORT EXPANSION (2017)

the end of 2020 does not appear to be completely inadequate. In 2017, a number of NGOs and individuals sought to persuade a panel of the Austrian Federal Administrative Court to overturn the Government’s approval of a construction of a third runway at Vienna’s main airport146. The claimants argued that the authorisation would cause harm to public interest as it would be contrary to Austria’s national and international obligations to mitigate the causes of climate change as well as Austria’s Climate Protection Act 2011 which set emissions reduction targets for the transport sector147 .

35. In early 2017, the Court found in favour of the claimants on the grounds of climate protection and land use148. It examined changes in future air traffic, emission impacts of such changes, and adverse impacts of climate change on Austria and more broadly, Europe’s efforts to reduce emissions generally from air traffic149. The court noted that the construction would increase Austria’s annual CO2 emissions by between 1.79% and 2.02% by 2025, and concluded that the increase would be contrary to Austria’s 2020 transport sector emissions reduction target of 2.25%150. However, the Austrian Constitutional court later overturned the earlier decision, commenting that the lower court had erred when improperly giving weight to climate change and land use considerations in balancing the public’s interest in a third runway151. Of notice, the Constitutional Court identified the misapplication of the Kyoto Protocol and the Paris Agreement, which the court explained where a source of international obligations, but are not generally applicable in the domestic legal context152. Key excerpts of the decision follow:

Regarding the complaints of Vienna International Airport and the federal state of Lower Austria against the order of the Federal Administrative Court of the 2 February 2017, where the approval of the establishment and operation of a 3rd runway at the Vienna International Airport and the associated relocation of the main road B 10 was refused, the Constitutional Court, in accordance with art. 144 of the constitutional law, holds that:

Due to the contested order, the complaining parties have been subjected to violation of the constitutionally guaranteed right to equality before the law.

The order is repealed.

The federal state of Lower Austria is obligated to compensate the Vienna International Airport through their legal representative for the legal costs amounting to EUR 2,856.00 within 14 days subject to execution otherwise.

A. LEGAL POSITION

GROUNDS FOR THE DECISION

In accordance with section 71(1) in the Aviation Act (Luftfahrtgesetz, LFG), a civilian airport authorisation is to be given, if the project is suitable from a technical standpoint and safe operation is to be expected (item a), the authorisation applicant is reliable and qualified for operating the business (item b), the financial means of the authorisation applicant ensure

148

149

150

151

152 Sabin Centre for Climate Change Law Columbia Law School Climate Blog, Executive Summary, 1, <http://blogs2.law. columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2017/20170202_ W109-2000179-1291E_decision-3.pdf>. Ibid. Ibid. Sabin Centre for Climate Change Law Columbia Law School Climate Blog, “No 3rd Runway at Vienna Airport Because Adverse Climate Impacts Outweigh Short-Term Economic Benefits: Austrian Court” <http://blogs.law.columbia.edu/ climatechange/2017/02/10/no-3rd-runway-at-vienna-airport-because-adverse-climate-impacts-outweigh-shortterm-economic-benefits-austrian-court/> ; decision in German: <https://www.vfgh.gv.at/downloads/VfGH_E_8752017_Verkuendungstext_Flughafen.pdf>. Ibid.

compliance with the obligations for the airport owner stated in this federal act (item c) and other public interests are not a hindrance (item d). Furthermore, a civilian airport authorisation for a public airport shall only be given in accordance with section 71(2) if there is a need for this. Airports shall only be authorised if their establishment is in the public interest. An airport is in that connection particularly not in the public interest if it is located less than 100 km in a bee-line from an already authorised and operational airport that would be suitable for carrying out the transport tasks in question (item a) and if the owner of the already existing airport would be able and willing to carry out the tasks envisaged for the planned airport within six months (item b).

Regarding the term (other) “public interests” in section 71 in the Aviation Act, the Supreme Administrative Court has already interpreted this in the year 1970. In this order passed through a reinforced national council (VwSlg. (collection of orders and important decisions of the supreme administrative court) 7913 A/1970), the following is stated, among other things:

“The word ‘other’ means that this does not include the interests stated in items a) to c) of section 71(1) of the Aviation Act. Thus, there are other public interests to take into account which are to be observed in accordance with the Aviation Act. Such public interests can for example be protection of the general public (sections 92, 96 and 124 in the Aviation Act), maintenance of public tranquillity, order and safety (sections 5, 124, 126, 145), avoidance of endangerment of lives, health and property (section 133), assurance of the safety of persons and property (section 122), the safety of persons and objects on the ground (section 128), keeping away nuisance-causing influences for persons and objects (section 5) and avoidance of avoidable noise (section 14).”

This interpretation of the term “other public interests” has been assumed in connection with the Constitutional Court (cf. VfSlg. (collection of orders and important decisions of the Constitutional Court) 12.465/1990) as well as the Supreme Administrative Court (cf. the Supreme Administrative Court 30.9.2010, 2010/03/0110).

The wording of section 71(1)(d) of the Aviation Act – that there can be no other interests that are a hindrance to the authorisation of the airport initially causes the impression that every public interest that is a hindrance to the project, regardless of its prioritisation, will necessarily lead to refusal of the civilian airport authorisation. However, in order to avoid unfair results, this stipulation is to be interpreted in a way that ensures that the other public interests according to section 71(1)(d) leg.cit. and the public interests according to section 71(1)(a, b and c) as well as 71(2) leg.cit. should be weighed against each other, which means that a balancing of interests should be carried out.

The approach according to section 71 of the Aviation Act requires establishment of the type and extent of the effects on any legally protected rights regarding the public interests to be guaranteed in accordance with the Aviation Act caused by the project to be approved, and under which circumstances, to which degree and with which probability concrete effects are to be expected. In that connection, the national territory of Austria (cf. art. 3 in the constitutional law) is the ultimate reference framework regarding the establishment of emissions as well as their effect.

With the current constitutional law on environmental protection (since 2013: section 3 of the constitutional law on sustainability), the constitutional legislation authority has expressed that there is a qualified (“constitutionally established”): VfSlg. 13.102/1992) public interest in the preservation of the matters described there.

The Constitutional Court has already taken the constitutional law on environmental protection into account on several occasions when checking laws for their constitutionality and orders for their legality. However, it cannot be deduced from the constitutional law on environmental protection or (since 2013) section 3 of the constitutional law on sustainability that environmental protection interest take absolute precedence over other determining factors that are incumbent on the administration (cf. VfSlg. 16.242/2001).

Since the coming into force of the constitutional law on environmental protection in the year 1984 (since 2013, section 3 in the constitutional law on sustainability), the eligible “other public interests” that must be observed according to the Aviation Act and taken into account in connection with the balancing of interests in accordance with section 71 leg.cit. must be interpreted in the light of this state objective.

Therefore, it is constitutionally required to take into account the extensive environmental protection in connection with the interpretation of the relevant interests that must be observed according to the Aviation Act as well as in connection with the following balancing of these interests, if the interests established as crucial are of relevance to environmental protection. However, the mentioned state objective does not mean that the interests to be taken into account are extended beyond the range of interests to be observed according to the Aviation Act; it also does not mean that this state objective results in expansion of the reference framework of emissions or effects that must be investigated according to the Aviation Act.

B. THE CONTESTED DECISION

1. INCORRECT CONSIDERATION OF “CRUISE EMISSIONS”

In its decision, the Federal Administrative Court does not just take the CO2 emissions into account that come from the landing and take-off emissions of aeroplanes at Vienna International Airport, but also includes the total emissions during the flight in connection with international air traffic (so-called cruise emissions) in the total project of Vienna International Airport.

2. TAKING NOT APPLICABLE INTERNATIONAL AND EU LAW REGULATION REGARDING CLIMATE PROTECTION INTO ACCOUNT

For the assessment of the established emissions and also subsequently in connection with balancing of the interests, the Federal Administrative Court has also taken reference values into consideration from not immediately applicable sources of law or non-constitutional regulations that are relevant to other sectors (than the aviation sector) or which explicitly exclude CO2 emissions from aeroplanes:

(a) The Kyoto Protocol, the Paris Agreement on climate change

Firstly, the Federal Administrative Court refers to the Kyoto Protocol regarding united Nations Framework Convention on Climate Change as well as Construction, Federal Law Gazette for theRepublicofAustria III89/2005, aswellastheParisAgreement on climate change, Federal Law Gazette for the Republic of Austria III 197/2016. However, both agreements have (in Austria) the reservation that they are to be complied with through the introduction of laws; thus, they only create an international obligation

3. (b)

for Austria and are not immediately applicable nationally. Add to this that the Kyoto Protocol – which in addition to this only establishes legal obligation until the year 2012 – does not include international aviation.

Effort-Sharing-Decision, climate protection law

(c)

Furthermore, the contested decision relies on the climate protection law that implements the decision 406/2009/EC of the EU Parliament and Council on the effort of Member States to reduce their greenhouse gas emissions (the so-called Effort Sharing Decision). However, this EU law decision is not applicable on aviation. Therefore, aviation is also exempt from the scope of the climate protection law.

Trade with emission allowances

(d)

Finally, the Federal Administrative Court also refers to the EU system of greenhouse gas emission allowances. With the Directive 2008/101/EC, aviation was also included in this system; however, the responsibility to meet the obligations resulting from this directive only applies to aircraft operators, who – as stated in the directive – “have the most direct control over the type of aircraft in operation and the way in which they are flown”. Thus, airports do not fall within the scope of the law regarding emission allowances.

Intermediate result

Hence, the Federal Administrative Court has in its assessment of the established CO2 emissions placed significant impact on the overall co-responsibility of Austria for the global climate protection. However, no negative conclusions for the approval of the project can be deduced from the presumed lacking achievement of the climate goals – without an explicit legal order.

CONSIDERATION OF “PUBLIC INTERESTS” WHICH ARE NOT ROOTED IN THE AVIATION ACT

The Federal Administrative Court states in the contested decision that it is not defined further in the Aviation Act what “other public interests” in section 71 of the Aviation Act means. Furthermore, there is no objective in the Aviation Act that can be taken into account in connection with interpretation. At any rate, public interests means interests that put the matters of the common good over individual interests. Regarding the interpretation of section 71 (1)(d) of the Aviation Act, it is therefore a matter for the administration to determine the public interests that are crucial for this administrative ruling.

Correspondingly, the Federal Administrative Court assumes that public interests can basically be all interests focused on the common good, regardless of the type. Because of this position, the Federal Administrative Court assumes that in connection with the granting of a civilian airport authorisation according to the Aviation Act, interests regarding climate protection or land recycling must be taken into account in the balancing of interests.

However, these interests are not rooted in the actual Aviation Act. Regardless of this, it can in no way be deduced which rule of law the interest in sparse land use presumed by the Federal Administrative Court is based on.

4. CONSIDERATION OF NOT COMPETENCE-RELEVANT STATE OBJECTIVES AND NOT NORMATIVE DOCUMENTS IN CONNECTION WITH THE BALANCING OF INTERESTS

After establishment of the crucial public interests, a legally authorised balancing of interests requires investigation of the criteria for the balancing of interests. These must be predetermined on the grounds of the legal system; they are evident from currently applicable relevant laws or from immediately associated state objectives. In any case, the investigation of the criteria for the balancing should be carried out through an interpretation of positive law.

In its decision, the Federal Administrative Court presumes that the criteria for balancing of public interests are not determined further in the Aviation Act. If no criteria can be found in a relevant law, the balancing of interests must be carried out through orientation towards utterance of values by democratically legitimised bodies or based on the stepwise structure of the legal system. These points of reference would be evident from enactments of the federal government, decisions of the national council, regulations of EU law as well as provincial and constitutional regulations. In that connection, the Federal Administrative Court, in addition to the constitutional law on sustainability, also refers to Art. 37 GRC, Art. 4 Z 2 of the provincial constitution for Lower Austria of 1979, a decision of the council of ministers for the Austrian federal government from the 23 October 2012 (“The Austrian strategy for adaptation to the climate change” – part 2, action plan, action recommendations for the implementations), the “Road map for aviation 2020” created by BMVIT, which was adopted by the federal government in the year 2011, as well as a decision of the national council from the 12 November 2015 regarding Austria’s contribution to an ambitious result of the climate conference in Paris in December 2015.

According to Art. 4 Z 2 of the provincial constitution for Lower Austria of 1979, the environmental protection and the climate protection are of particular significance. However, according to the division of competences of the federal state, this kind of stipulation of constitutional objectives can only have an effect within the independent scope of the country. Thus, Art. 4 Z 2 of the provincial constitution for Lower Austria of 1979 cannot be used for interpretation of the Aviation Act.

This is even more the case for non-normative documents, which the Federal Administrative Court has also attributed significance as relevant for the decision-making.

C. RESULT

Thus, the Federal Administrative Court has grossly mistaken the legal position in several ways in connection with the contested decision, where the approval of the establishment and operation of a so-called 3rd runway at the Vienna International Airport was refused. This accumulated misinterpretation of the legal position burdens the contested decision with arbitrariness; it subjects the parties to violation of their right to equality before the law. Therefore, the contested decision is repealed.

SWITZERLAND

UNION OF SWISS SENIOR WOMEN FOR CLIMATE PROTECTION (2017)

36. 38. In Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others, at issue is adequacy of the Swiss government’s climate change mitigation targets and implementation measures.153 The litigants argued that global warming creates a ‘new vulnerable population group’, specifically elderly women. Due to which, the State is under an obligation to mitigate against the effects of global warming thereby mitigating against the elderly women’s risk to life. The manner in which global warming was threatening their lives was through the negative consequences of heat waves. Heat waves in Switzerland alone have been responsible for 267 deaths in only one 2015 summer. Statistics show that the heat waves are a direct result of global warming and that these deaths are disproportionately represented by older women. The positive obligation on the State is to reduce emissions, as the number of hot day’s increases with rising emissions. The litigants have then argued that Switzerland has breached this duty, by its actions and omissions, as they have not prevented

UNITED KINGDOM

R (FRIENDS OF THE EARTH) (2020)

‘a disastrous increase of global temperatures’.154 In R (Friends of the Earth) v. Secretary of State for Transport and others) (2020) before the Court of Appeal (Civil Division) in the United Kingdom155, a case seeking to permanently ban the construction of a third runway at Heathrow airport due to climate change concerns failed. While the Court did not definitively state the such a runway was allowed or not allowed, in this particular case the objective sought was not achieved. The following is a summary of the judgment issued by the court:

This morning we are handing down the judgments of this court in a number of related proceedings that have come before us from the Divisional Court, which concern the proposed expansion of capacity at Heathrow Airport by the addition of a third runway under the policy set out in the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the south east of England” (“the ANPS”). That document, designated by the then Secretary of State for Transport in June 2018, is a national policy statement prepared under section 5(1) of the Planning Act 2008. It was subject to a number of legal challenges brought by claims for judicial review in accordance with the procedure that Parliament has provided for such challenges to be brought, in section 13(1) of the Planning Act.

153

154

155 Union of Swiss Senior Women for Climate Protection vs. Swiss Federal Council Climate Change Litigation <http:// klimaseniorinnen.ch/wp-content/uploads/2017/05/request_KlimaSeniorinnen.pdf>.12,27]]}}}],“schema”:“https://github. com/citation-style-language/schema/raw/master/csl-citation.json”} Ibid. Neutral Citation Number: [2020] EWCA Civ 213, Case No: C1/2019/1154, In the Court of Appeal (Civil Division), On appeal from the Queen’s Bench Division, Divisional Court, Lord Justice Hickinbottom, Mr Justice Holgate and Mr Justice Marcus Smith, (2019) EWHC 1069 (Admin), 27 February 2020, Before: Lord Justice Lindblom, Lord Justice Singh and Lord Justice Haddon-Cave.

The first judgment addresses a challenge brought by Heathrow Hub Ltd. and Runway Innovations Ltd., who proposed extending the northern runway at Heathrow. The second deals with several challenges, brought by a number of local authorities, the Mayor of London, Greenpeace Ltd., Friends of the Earth Ltd. and Plan B Earth, concerning the planning aspects of the ANPS and its process.

In the first judgment we have concluded that the arguments put forward by the appellants on legitimate expectation, the materiality of the absence of any assurance from Heathrow Airport Ltd. to implement Heathrow Hub’s scheme for an extended northern runway, and various grounds concerning the law of competition must all fail.

As to legitimate expectation, the Divisional Court rejected Heathrow Hub’s argument that the Secretary of State’s request that Heathrow Hub obtain an assurance from Heathrow Airport Ltd to implement their extended northern runway scheme amounted to a breach of a “legitimate expectation” that the Secretary of State would not take into account any risks arising from the fact that Heathrow Hub depended upon Heathrow Airport Ltd to deliver its extended northern runway scheme in making the decision to prefer the north-west runway scheme (paragraphs 78 to 80 of the judgment in the appeal by HUB). Heathrow Hub challenged this conclusion on appeal (paragraphs 81 to 86). We have upheld the Divisional Court’s conclusion that there was no express or implied promise or any regular pattern of behaviour amounting to a representation that this would never be a consideration in the preference decision process, still less a clear and unambiguous representation devoid of any relevant qualification such as to justify a finding in law of legitimate expectation (paragraphs 87 to 92).

As to materiality, the Divisional Court held that if the Secretary of State had not requested an assurance or if Heathrow Airport Ltd had given an assurance this would have made no difference to the preference or designation decisions, because the objective merits of the extended northern runway scheme remained the same (paragraphs 97 to 100). Heathrow Hub challenged this finding on appeal (paragraphs 101 to 104). We have held that the Divisional Court was entitled to find on the evidence that the absence of an assurance was immaterial to the preference and designation decisions (paragraph 141). We have also held that it was “highly likely” that the designation decision would been the same whether or not an assurance had been requested or forthcoming, and accordingly, under section 31(2A) of the Senior Courts Act 1981, the Divisional Court would have been bound to dismiss Heathrow Hub’s claim for judicial review in any event (paragraph 177).

In the second judgment, we have emphasized the long-established limits of the court’s role when exercising its jurisdiction in claims for judicial review (paragraphs 135 to 137 of the judgment on planning issues). As an appellate court, we operate within the same limits. We have made it clear that we are not concerned in these proceedings with the political debate and controversy to which the prospect of a third runway being constructed at Heathrow has given rise. That is none of the court’s business. We have emphasized that the basic question before us in these claims is an entirely legal question. We are required – and only required – to determine whether the Divisional Court was wrong to conclude that the ANPS was produced lawfully.

Our task therefore – and our decision – does not touch the substance of the policy embodied in the ANPS. In particular, our decision is not concerned with the merits of expanding Heathrow by adding a third runway, or of any alternative project, or of doing nothing at all to increase the United Kingdom’s aviation capacity. Those matters are the Government’s responsibility and the Government’s alone (paragraphs 2 and 281 to 285).

To a substantial extent, for the reasons we have set out, we agree with the analysis and conclusions of the Divisional Court. Like the Divisional Court, we have concluded that the challenges to the ANPS must fail on the issues relating to the operation of the Habitats Directive, and also on all but one of the issues concerning the operation of the Strategic Environmental Assessment Directive (paragraph 283).

However, we have concluded that the challenges should succeed in one important respect. This relates to the legislative provisions concerning the Government’s policy and commitments on climate change, in particular the provision in section 5(8) of the Planning Act, which requires that the reasons for the policy set out in the ANPS “must … include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change”. We have concluded, in particular, that the designation of the ANPS was unlawful by reason of a failure to take into account the Government’s commitment to the provisions of the Paris Agreement on climate change, concluded in December 2015 and ratified by the United Kingdom in November 2016 (paragraphs 222 to 238 and 242 to 261).

We have concluded that the ANPS was not produced as the law requires, and indeed as Parliament has expressly provided. The statutory regime for the formulation of a national policy statement, which Parliament put in place in the Planning Act, was not fully complied with. The Paris Agreement ought to have been taken into account by the Secretary of State in the preparation of the ANPS and an explanation given as to how it was taken into account, but it was not (paragraph 283).

That, in our view, is legally fatal to the ANPS in its present form. As we have explained, the normal result in a successful claim for judicial review must follow, that the court will not permit unlawful action by a public body to stand. Appropriate relief must therefore be granted, as normally it will be where unlawfulness in the conduct of the executive is established (paragraph 284). The Secretary of State did not contend that, if this was our conclusion, the outcome would or might have been no different – though such an argument was pursued by Heathrow Airport Ltd. In our view, it is necessary to grant a suitable remedy at this stage to ensure, at least, that the ANPS does not remain effective in its present unlawful form pending the outcome of its statutory review – under section 6 of the Planning Act – in the light of the Paris Agreement (paragraph 278). Section 6(5) of the Planning Act states that “[after] completing a review of all or part of a national policy statement the Secretary of State must do one of the following … (a) amend the statement; (b) withdraw the statement’s designation as a national policy statement; (c) leave the statement as it is” (paragraph 39).

The parties have had an opportunity in the light of our draft judgments to make submissions to us on the appropriate remedy to reflect the conclusions we have reached. In the light of those submissions, we have concluded that the appropriate remedy is a declaration, the

39. effect of which will be to declare the designation decision unlawful and to prevent the ANPS from having any legal effect unless and until the Secretary of State has undertaken a review of it in accordance with the relevant statutory provisions, including the provisions of section 6, 7 and 9 of the Planning Act 2008. Any such review would have to be conducted in accordance with the judgment of this court. The initiation, scope and timescale of any review must and will be a matter for the Secretary of State to decide (paragraphs 279 to 280).

Our decision should be properly understood. We have not decided, and could not decide, that there will be no third runway at Heathrow. We have not found that a national policy statement supporting this project is necessarily incompatible with the United Kingdom’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement, or with any other policy the Government may adopt or international obligation it may undertake. The consequence of our decision is that the Government will now have the opportunity to reconsider the ANPS in accordance with the clear statutory requirements that Parliament has imposed (paragraph 285).

We should add finally that, having seen our judgment in draft, the Government has not opposed the grant of a remedy. Nor has the Government sought permission to appeal from

PHILIPPINES

GREENPEACE SOUTHEAST ASIA AND OTHERS (2019)

our decision to the Supreme Court. In the case of Greenpeace Southeast Asia and Others filed before the Philippines Human Rights Commission, the Commission found that a company known as Carbon Majors could be liable for climate impacts.156 In the petition, Greenpeace et al asked for an investigation of “the human rights implications of climate change and ocean acidification and the resulting rights violations in the Philippines” and ”whether the investor-owned Carbon Majors have breached their responsibilities to respect the rights of the Filipino people.” In December 2019, the Commission found that major fossil fuel companies could, indeed, be held liable for climate change impacts, and that current civil law in the country could be used as a basis for subsequent actions to hold companies criminally liable, and that these companies are obliged to respect the human rights addressed in the United Nations Guiding Principles on Business and Human Rights. In lieu of a formal decision capable of reproduction in this report, we include a press release issued by the Commission on 28 March 2018 prior to its ultimate findings:

National Inquiry on the Impact of Climate Change on the Human Rights of the Filipino People

PHL at the forefront of seeking climate justice with CHR’s landmark inquiry on the effects of climate change to human rights

156 In re Greenpeace Southeast Asia and Others, Case No. CHR-NI-2016-0001 (Human Rights Commission of the Philippines).

QUEZON CITY—The Commission on Human Rights (CHR) held the first public hearing probing the alleged responsibility of major fossil-fuel companies or so-called “carbon majors” to climate change and how this impacts the human rights of Filipinos. A first in the world, this is considered a landmark inquiry casting the issue of Climate Change within the human rights framework. In his opening remarks, CHR Chaiperson Jose Luis Martin “Chito” Gascon said that it is no wonder that the Philippines is at the forefront of seeking to address the climate issue given that Filipinos is among those who have suffered most from it. “Among those who are suffering the most from the effects of climate change is the Philippines. Nowhere has it been more dramatically demonstrated than in November of 2013, when our country was visited by Typhoon Haiyan or Yolanda,” Chairperson Gascon said.

IMPACT OF CLIMATE CHANGE ON VULNERABLE SECTORS

Petitioners comprising of victims of calamities and human rights groups testified during the hearing to share stories and give accounts of how climate change has impacted their lives and livelihood. Rica Diamzon Cahilig, a 20-year-old student belonging to the Ayta Ambala indigenous group in Bataan, shared with grief how the impact of climate change has depleted the forest, which they consider as their home and primary source of basic needs like food, water, and medicine.

Considering that Philippines is an agricultural country, among those who most bear the brunt of climate change are the farmers. Felix Pascua Jr., a farmer, lamented how climate change worsened their plight and pushed them further into poverty.

Image: Vulnerable community members threatened by looming climate change, Western Bangladesh. Kadir van Lohuizen / NOOR.

SCIENCE TO INFORM POLICY DISCUSSIONS ON CLIMATE CHANGE

Among those who stood as resource persons are concerned scientists and experts on climate change and weather trends. Professor Gerry Bagtasa, an atmospheric scientist and professor of environmental science and meteorology at the University of the Philippines, presented the climate change phenomenon and how it affects the environment and people. “The temperature is overly increasing. If it becomes warm, there will be more rain. The sea level is also a problem. The melting of the ice on land causes a problem. Philippines has the highest number of sea level rise from the rest of the world”, he explained. Ms. Rosalina de Guzman, Assistant Chief of the Weather Services of the Philippine Atmospheric, Geophysical, and Astronomical Services Administration (PAGASA), presented the climate trends and projections in the Philippines. She stressed that Philippines is highly vulnerable to the effects of climate change and ranks 3rd in the world index. “There is an increased frequency and intensity of extreme rainfall. The Philippines also has the most number of tropical cyclones. During El Nino, the cyclones intensify”, she explained. Through Skype webcast, Director Peter C. Frumhoff of the Union of Concerned Scientists based in the United States, presented his findings on his recent study on carbon dioxide. He also gave his opinion in dealing with the climate change issue from a scientist’s perspective towards informing policy discussion. “We should plan for a world free from carbon pollution and renounce climate disinformation. Companies and businesses must pay their fair share of climate damage”, he opined to conclude his presentation.

PHL AT FOREFRONT OF CLIMATE JUSTICE THROUGH THE NATIONAL INQUIRY

The CHR’s inquiry on climate change started in the first part of 2016. This is in accordance with its mandate to investigate and monitor all matters concerning the rights of its citizens especially those who belong to the marginalized and vulnerable sectors. Commissioner Roberto Eugenio T. Cadiz, chair of the said national inquiry, described the method of inquiry as global, inclusive, and dialogical rather than adversarial. “Key stakeholders, including those from other territorial jurisdictions, have been encouraged to participate in this process. The method of inquiry shall be more dialogic, rather than adversarial, without, however, sacrificing due process of law”, Commissioner Cadiz explained. Among the resource persons of the petitioner is Attorney Lisa Anne Hamilton, Director of Climate and Energy Program. She highlighted that human rights laws provide that States have an obligation when it comes to climate issues and it is duty-bound to protect citizens from third parties such as companies. “Human rights norms clarify that States should respond to climate change. Human rights law imposes wide-ranging obligations upon States to protect individual from infringements by third parties, including corporations”, she stressed.

In conclusion to the first public hearing, Executive Director of Greenpeace Southeast Asia Yeb Sano manifested his faith in the Commission for trying to find the resolution in the huge challenge of climate change. “I trust in and have huge faith in the Commission despite the current state of our institutions in this country. We have faith in the ability of the Commission to prove that there are courts of justice rather than just courts of law. I also trust in the ability of humanity to find a solution in the climate crisis”, Sano heartedly expressed. Through the inquiry, the CHR seeks to determine liability issue against companies that are not domiciled in the Philippines on the basis of trans-boundary effects of their business operations, to understand the business activities of so-called “Carbon Majors” with respect to their alleged impact on climate change, and to gather baseline scientific data and other information on climate change.