10 Landmark Cases for BoyaBiodiversity Jiang Emmanuel Ugirashebuja Dimitri de Boer Danting Fan Brazil’s Negro River is the Amazon River’s largest tributary (USGS @usgs) II Landmark Cases for Biodiversity Introduction Environmental justice is the last line of governance, legal systems, and the defense for the environment. In the run-up capacity of judges, prosecutors and NGOs to the fifteenth meeting of the Conference and in almost all regions. of the Parties to the Convention on Biological Diversity (CBD COP 15), Our humanity depends on biodiversity. ClientEarth has compiled this selection of We must urgently reverse biodiversity ten landmark cases for biodiversity from loss, and learn to live in harmony with around the world. nature. We hope that the stories of these ten landmark cases will help leaders During March and April 2021, a survey understand the power of litigation, and was conducted among environmental inspire legal professionals around the world. law professionals including judges, prosecutors, experts and NGO lawyers, May 2021 to identify outstanding cases for nature conservation. The selected cases represent different geographies, biomes and drivers The stories and analyses of the selected of biodiversity loss, such as deforestation cases are based on the court judgements and habitats loss, illegal trafficking of and additional materials provided by wildlife, climate change, pesticides, and contributing experts. We are grateful to all more. those who helped provide materials on good cases, including Raquel Elias Ferreira Dodge, Patrick Parenteau, Canfa Wang, Friends of Despite worldwide efforts, the number Nature, James Thornton, Claudia S. de Windt, of cases in some important areas of Luc Lavrysen, Brian Preston, Rocky Guzman, biodiversity falls far short of expectations. Yaffa Epstein, Gregorio Rafael Bueta, and For example, despite the ocean losing over Jean-Paul Paddack. Mengxing Liu, Yanqi 40% of its biodiversity in only the past Zhang, Gabriel Corsetti and Alain Chevallier contributed with project management, 50 years, few cases were identified which translation, editing and designing. address marine and coastal biodiversity loss. And efforts to tackle biodiversity remain uneven. We must strengthen b Landmark Cases for Biodiversity Table of of Table Contents 1 1. China: the Green Peacock Case 4 2. Brazil: the Amazonia Protection Action 8 3. Colombia: Deforestation in the Amazon 12 4. Costa Rica: Investigation into Pesticide that Harms Bees 16 5. Belgium: the Smuggling of Protected Birds 20 6. Finland: Wolf Hunting 24 7. Australia: the Bulga Coal Mine Case 28 8. Tanzania: the Serengeti Road Case 32 9. The Philippines: Dolphins in the Tañon Strait 36 10. India: the Asiatic Lions Case Green Peacock. Zhinong Xi d Landmark Cases for Biodiversity groups of related species exist in parts of 1. China: the Southeast Asia. As a civil public interest litigation case for Green Peacock the prevention of harm against endangered wildlife, and shows the progress in China’s Case government and legal system in taking ecological protection seriously. Unique Bird Habitat Protected from Hydrodam Legal analysis A Chinese NGO won a case against a After almost three years and several proposed hydropower dam in Yunnan, hearings, in March 2020, the Kunming China, to protect a colony of green Intermediate People’s Court ruled in peacocks, a rare and beautiful bird. A high the first instance that the dam builder court in Yunnan Province decided that should immediately suspend work until a construction of the 270 MW Jiasa River new environmental impact assessment dam should be halted over concerns that is carried out. In December 2020, the the reservoir would destroy the key habitat. Yunnan High People’s Court, the court of The case became a spotlight for China’s second instance, issued a final judgement pledge to conserve its ecology. upholding the first-instance decision. The case concerns three leading issues: Called “the king of birds” in ancient Chinese literature, the green peafowl’s numbers are believed to have slumped to between 235 to 280 individuals in the wild in China, mostly in Yunnan, as a result of habitat destruction, poaching and pesticide pollution etc. The bird is rarer in the country than the emblematic Giant Panda and is classified as “endangered” on the International Union for Conservation of Nature’s Red List, though fragmented Zhinong Xi 1 Landmark Cases for Biodiversity 1. The river banks risk being flooded and approved at a time when Cycas chenii by the reservoir of the Dam. So how had not yet been formally described and to determine to what extent the green included in the World Cycas List, hence peacocks will be affected by a damage explaining the agency’s failure to include that is yet to occur? this protected plant in the EIA report. For this matter, both the Court of First The Court of First Instance held that the Instance and the Court of Second Instance plaintiff failed to prove that the EIA agency held the project on the Gasa River posed had violated the law in conducting EIA . an imminent and real significant risk to the habitat of the green peacocks and the The Court of Second Instance held that protected plant Cycas chenii. This case the ability of EIA report producers to falls under the category of preventive use materials to assess environmental public interest litigation against “the acts impact and reach conclusions depended of environmental pollution and ecological on a series of subjective and objective damage that pose a significant risk of factors such as the producer’s cognitive harming public interests” listed in the level, evaluation standards and the level Interpretation of the Supreme People’s of technologies, etc. Having reviewed the Court on Several Issues Concerning the EIA report concerned, the court ruled Application of Law to the Adjudication that there was no correlation between its of Environmental Civil Public Interest content and the conclusion, nor was there Litigation. Therefore, it should be evidence showing the EIA agency had considered a preventative public interest acted unlawfully. litigation case. 3. Should the construction of the dam be 2. Was the EIA procedure in this halted? If so, should it be banned just for case illegal? now or permanently? Friends of Nature challenged the legality The Court of First Instance order the of the EIA procedure, claiming it lacked dam builder to immediately stop the work comprehensive investigation and fact- based on the existing EIA report, and not based assessment. to take or store water from the river or fell the vegetation in the area that risk being The EIA agency argued that the EIA Report flooded by the dam. However, the injunction in this case had clearly stated that “with was granted against the construction plan limited time and considering the features based on the existing EIA. The competent of wildlife, it is not possible to reach a authorities will decide what to do next with comprehensive conclusion on either birds the dam after the builder takes an ex-post or other more secretive animal species in a environmental impact assessment as short period of time”. The assessment was instructed by the Ministry of Ecology and based on a combination of literature and Environment and submits improvement interviews and thus reached a conclusion measures for filling. that the construction of the dam would not affect the survival of the green peacocks in the area. Also, the report was prepared 2 Landmark Cases for Biodiversity Research team investigating the hydropower dam. Wild China Film The Court of Second Instance competent authorities once the ex-post supported the verdict and held that, environmental impact assessment is considering the risks facing the habitat completed. of the birds and under the provisions of Environmental Impact Assessment Law on The Green Peacock case was a landmark “circumenstances where non-compliance victory. As China’s first and most important with the approved EIA documents occurs case of preventive public interest litigation in the course of the construction and for the conservation of endangered operation of a project”,the Court of First wildlife, it went further and broke away the Instance made the ruling to protect the traditional judicial concept of “an injury is environment from immediate harm. The only remediable when it is suffered” and judge weighed the social and economic prioritized environmental protection even impact and made a sensible decision before the damage is done. It showcases in time, pulling the species back from the irreplaceable role of China’s judicial the brink of extinction and bringing the system in nature protection. significant risk to the habitat of the green peafowls under control. The Ministry of Ecology and Environment has ordered an ex-post environmental impact assessment, and the builder is obligated to take one. The decision of banning the construction permanently or not has been left with the 3 Landmark Cases for Biodiversity illegally logged, and subsequently acquired 2. Brazil: the for cattle ranching or agricultural use by a different person or company. Amazonia The ruling is a major breakthrough, clearing the way for the prosecutors to proceed with Protection all outstanding cases. Current landowners will be required to restore the forest and pay Action compensation. Satellite imagery is used to identify the extent of past deforestation, Supreme Court Ruling and to support the prevention of further deforestation. This huge campaign of Boosts Prosecutors’ public interest litigations by the federal Campaign Against prosecutors is of global significance, as it Deforestation makes a great contribution to protecting the Amazon rainforest, the world’s largest terrestrial biodiversity hotspot. In November 2017, Brazilian Federal Public Prosecutor Office (Ministério Público Federal) launched the Protect Amazon Legal Analysis Project with two main goals: to promote reforestation of degraded areas; and to The Protect Amazon Project demand indemnification for material and is a paradigm of tackling moral injuries caused by deforestation.