Climate Change, Coming Soon to a Court Near You: Climate Litigation in Asia and the Pacific and Beyond

CLIMATE CHANGE, COMING SOON TO A COURT NEAR YOU CLIMATE LITIGATION IN ASIA AND THE PACIFIC AND BEYOND DECEMBER 2020 ASIAN DEVELOPMENT BANK CLIMATE CHANGE, COMING SOON TO A COURT NEAR YOU CLIMATE LITIGATION IN ASIA AND THE PACIFIC AND BEYOND DECEMBER 2020 ASIAN DEVELOPMENT BANK Creative Commons Attribution 3.0 IGO license (CC BY 3.0 IGO) © 2020 Asian Development Bank 6 ADB Avenue, Mandaluyong City, 1550 Metro Manila, Philippines Tel +63 2 8632 4444; Fax +63 2 8636 2444 www.adb.org Some rights reserved. Published in 2020. ISBN 978-92-9262-521-4 (print); 978-92-9262-522-1 (electronic); 978-92-9262-523-8 (ebook) Publication Stock No. TCS200027-2 DOI: http://dx.doi.org/10.22617/TCS200027-2 The views expressed in this publication are those of the authors and do not necessarily reflect the views and policies of the Asian Development Bank (ADB) or its Board of Governors or the governments they represent. 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Printed on recycled paper CONTENTS Figures and Boxes vii Forewords Justice Antonio Herman Benjamin ix Lord Robert Carnwath xiii Justice Syed Mansoor Ali Shah xv Preface xix Acknowledgments xxi Abbreviations xxii Executive Summary xxv Climate Change: A Clarion Call for Judges xxv Why These Reports? xxv Report Series Structure xxvii Key Takeaways xxvii Moving Forward xxx INTRODUCTION 1 Report Structure 2 Defining Climate Litigation 7 Two Key Considerations for Defining Climate Litigation Broadly 8 Narrow Definition of Climate Litigation for Non-Regional Cases 10 Legal Citations 11 Looking Forward 11 PART ONE. RIGHTS-BASED LITIGATION AGAINST GOVERNMENTS 17 I. Standing 17 A. Global Approaches 17 B. Asia and the Pacific Approaches 21 II. Constitutional and Rights-Based Cases 27 A. Global Approaches 27 B. Asia and the Pacific Approaches 33 III. Statutory and Policy Commitments 47 A. Global Approaches 47 B. Asia and the Pacific Approaches 49 iv CONTENTS IV. The Role of the Paris Agreement 53 A. Global Approaches 54 B. Asia and the Pacific Approaches 55 PART TWO. PERMITTING AND JUDICIAL REVIEW 61 I. Leave It in the Ground 62 A. Global Approaches 62 B. Asia and the Pacific Approaches 68 II. Power Plant Cases 72 A. Global Approaches 72 B. Asia and the Pacific Approaches 75 III. Pipelines and Fossil Fuel Transport Projects 79 A. Global Approaches 79 B. Asia and the Pacific Approaches: Pipeline Emissions 82 in the Philippines IV. Renewable Energy 83 A. Global Approaches 83 B. Asia and the Pacific Approaches 89 V. Transportation Policies and Projects 95 A. Global Approaches 95 B. Asia and the Pacific Approaches 99 VI. Nuclear Facilities 108 A. Global Approaches 108 B. Asia and the Pacific Approaches 109 VII. Water and Aquatic Environments 110 A. Global Approaches 110 B. Asia and the Pacific Approaches 112 VIII. Land Use Change 119 A. Global Approaches 119 B. Asia and the Pacific Approaches 122 PART THREE. CASES AGAINST PRIVATE ENTITIES 125 I. Human Rights and the United Nations 125 A. Global Approaches: Human Rights in Nigeria and 127 the Netherlands B. Asia and the Pacific Approaches 127 II. Nuisance 131 A. Global Approaches 131 B. Asia and the Pacific Approaches 134 III. Negligence 136 A. Global Approaches: A Duty of Care in the Netherlands 136 CONTENTS v B. Asia and the Pacific Approaches 137 IV. Carbon Credits 139 A. Global Approaches 139 B. Asia and the Pacific Approaches 141 V. Wrongful Damage to Forests 143 A. Global Approaches 143 B. Asia and the Pacific Approaches 144 VI. Transparency and Business Risk 146 A. Global Approaches 146 VII. Enforcement Matters 149 A. Global Approaches 149 PART FOUR. ADAPTATION 153 I. Failure to Adapt 153 A. Global Approaches 153 B. Asia and the Pacific Approaches 157 II. Reverse Environmental Impact Assessments 172 A. Global Approaches 172 B. Asia and the Pacific Approaches: Failing to Assess 175 Cumulative Impacts in South Asia III. Suits against Taking Adaptation Actions 176 A. Global Approaches 176 B. Asia and the Pacific Approaches: Protecting Coast Properties 179 in Samoa PART FIVE. PEOPLE WHO ARE VULNERABLE TO CLIMATE CHANGE 181 I. Migration 182 A. Global Approaches 182 B. Asia and the Pacific Approaches: Migration with Dignity 187 in Kiribati II. Post-Disaster Lawsuits 189 A. Global Approaches 189 B. Asia and the Pacific Approaches 191 III. Participatory Rights 195 A. Global Approaches 196 B. Asia and the Pacific Approaches 197 IV. Indigenous Rights 200 A. Global Approaches: Climate Change in Australia 201 and Black Carbon in Canada B. Asia and the Pacific Approaches 202 V. Women and Climate Change in Asia 207 vi CONTENTS A. Impacts on Women from Alleged Climate Inaction 207 B. Impacts of Resource Scarcity and Disaster on Women 208 in South Asia C. Female Landownership and Climate Change 209 VI. Children and Climate Change in Asia 211 A. Children and Deforestation 211 B. Children and Disproportionate Impacts of Climate 212 on Their Future C. Climate Complaint to the United Nations Committee 213 on the Rights of the Child PART SIX. TRANSBOUNDARY LITIGATION 215 I. Global Approaches: Transboundary Harm in South America 215 II. Asia and the Pacific Approaches 217 A. European Carbon Dioxide Impacts on the Pacific 217 B. Rivers in South Asia 219 CONCLUSION 221 GLOSSARY 226 Glossary Refrences 233 FIGURES AND BOXES FIGURES 1 Report Definition of Climate Change 8 2 Agriculture Placing Huge Demands on Water: Asia’s Thirst for Food 113 BOXES 1 Shrinking Asian Glaciers 43 2.1 What is Waste-to-Energy? 93 2.2 Air Pollution from Transportation in Asia 100 4.1 Protecting Mangroves and Coastal Areas 161 4.2 Protecting Glaciers 166 We should include courts in the climate change picture because we have no other option. No substitute exists for the court system. If judges are in charge of deciding all sorts of conflicts about life, death, love, human rights, and national security, it makes no sense to leave climate change outside the courtroom. —Justice Antonio Herman Benjamin Photo by Ariel Javellana/ADB. FOREWORD CLIMATE CHANGE AND JUDGES limate change poses the most urgent existential challenge of our lifetime—not Conly for humanity’s survival and protection of the planet’s biodiversity, but also for the proper functioning of the Environmental Rule of Law. Our global climate’s accelerating volatility—with its adverse impacts on ecosystems, vast landscapes, and human health and dignity—is transforming how lawyers and judges address Environmental Law’s traditional principles, objectives, instruments, and institutions. From an institutional point of view, the climate crisis fundamentally affects the way we perceive the role of courts in natural resource disputes. Judges are trained and work in boxes of legal knowledge, practical expertise, and jurisdiction. The “little world” of a judge is one of unavoidable boundaries: political and judicial arenas that fragment ecological spaces instead of respecting them. Climate change profoundly modifies these ancient premises and rattles judges’ comfort zones. Some perceive the subject matter of climate protection—the atmospheric common good, ecosystem services, and intergenerational values—as extending beyond the jurisdiction of local courts. In fact, judges may feel that climate issues reside outside the sovereign borders of national courts. Particularly in respect to the planet’s climate, the material good—the atmosphere as a whole—is one that just a few decades ago, following the lessons of Roman law, was considered alien to the categories addressed by domestic legislation. It is also disturbing to judges that, while those who need protection and would benefit from judicial measures taken to address climate change are spread across the world, only a fraction might live within their jurisdiction. The same applies to the causes of climate change—perpetrated in large part by seemingly faraway activities and actors.

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