Case: Climate change litigation- failure of the Ministry of Environmental Protection of Ukraine to fulfil its climate change obligations.
Fact of the matter: to declare unlawful inaction and to oblige the Ministry of Environmental Protection to take actions on fulfilment of undertaken obligations pursuant to the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol as well as provisions of domestic legislation adopted for realization of abovementioned international documents.
Parties: plaintiff: NGO “Environment-People-Law” (EPL), defendant: the Ministry of Environmental Protection of Ukraine (Ministry)
Merit of the case: Ukraine signed and ratified the UNFCCC and the Kyoto Protocol to it. In order to fulfil the abovementioned documents, national regulatory-legal acts are developed. However, the Ministry of Environment as the coordinator of measures on fulfilment of the UNFCCC and Kyoto Protocol does not ensure fulfilment of obligations taken by Ukraine in appropriate way and introduction of climate protection policy in the State.
Provisions of national and international regulatory-legal acts on climate change are totally ignored and non-executed:
- By the Presidential decree of 12 September 2005 № 1239/2005 On coordinator of measures concerning fulfilment of obligations of Ukraine pursuant to the United Nations Framework Convention on Climate Change and Kyoto Protocol to the United Nations Framework Convention on Climate Change, according to which the Ministry of Environment is appointed the coordinator of measures aimed at fulfilment of Ukrainian obligations within the UNFCCC and Kyoto Protocol to it.
- By the Resolution of the Cabinet of Ministers of 18 August 2005 № 346-p National Action Plan on implementation of the provisions of Kyoto Protocol to the United Nations Framework Convention on Climate Change (National Action Plan) was approved. According to this document, the Ministry of Environment is appointed to be responsible for implementation of the range of measures, the term of which has already expired, and now the Ministry of Environment does not fulfil its obligations.
Out of 19 paragraphs of the National Action Plan only 9 were fulfilled. Namely, the following obligations were not fulfilled as for time when EPL filed a suit against the Ministry of Environmental Protection:
- Development and approval of methodological recommendations on preparation and carrying out inventory of anthropogenic emissions and GHG absorption (deadline- December 2005);
- Preparation and approval of the National Action Plan on allotment of anthropogenic emissions allowances from the sources of GHG emissions (deadline – November 2006);
- Development and approval of the procedure for issuance of permits on anthropogenic emissions from the sources of GHG emissions (deadline- February 2007);
- Preparation and affirmation of methodological instructions on monitoring and reporting on the procedure of issuance of permits on emissions from GHG sources (deadline- March 2007);
- Development of the National Action Plan on climate change mitigation (deadline – October 2006);
- Development and approval of the procedure of data bank maintenance on environmentally safe technologies, information exchange issues on usage of technologies between Ukraine and parties of the UN Convention on Climate Change and methods of reducing anthropogenic emissions and increasing GHG absorption, developing of appropriate data bank (deadline- July 2007).
By the Presidential Decree № 658/2007 of 20.07.07 the decision of National Security and Defense Council of Ukraine of 15 June 2007 “On state and problems on implementation of the United Nations Framework Convention on Climate Change by Ukraine” was put into force. (decision of NSDCU).
According to the decision of NSDCU, the Ministry of Environment is obliged within 3 months, i.e till 20.10.2007:
- To improve methodological providing of GHG emissions in accordance with the core principles of carrying out national inventory of anthropogenic GHG emissions, made by Intergovernmental Panel on Climate Change;
- Review the procedure of the government’s taking due account of objects which cause or can cause harm to human health and to the state of atmosphere, types and amount of contaminants which are emitted into the atmosphere with the purpose to form full list of enterprises which have the sources of GHG emissions;
There are breaches of international legal obligations:
- In accordance with art. 3 of UNFCCC for the goal of reducing GHG emissions the parties should:
- protect climate system;
- conduct warning actions with the purpose of foreseeing, preventing or reducing the causes of climate change and its mitigation.
- In accordance with article 4 of UNFCCC, all parties, including Ukraine, undertook obligations, among which Ukraine does not fulfil the following:
- Forming, conducting, publishing and regularly renewing national and, in some cases, regional programs, which include measures on climate change mitigation by means of solving problem of anthropogenic emissions from the sources and absorption by absorbents of all GHG, which are not regulated by the Montreal Protocol;
- Assisting and cooperating in developing, using and disseminating, including technology, methods and processes transfer, which give opportunity to reduce, limit or stop anthropogenic GHG emissions, which are not regulated by the Montreal Protocol;
- Assisting in efficient usage of absorbents and accumulators of all GHG which are not regulated by Montreal the Protocol;
- Cooperation in assuming preparatory measures with the purpose of adaptation to climate change;
- If possible take into consideration climate change issues in the process of realization of its social, economic and environmental policy;
- Assist and cooperate in performing scientific, technological, technical, social-economic and other research, systematic observations and forming data banks, connected with climate system;
- To assist and cooperate in educational issues, personnel training issues and enlightenment of citizens in climate change issues and actively take part in this process, including non-governmental organizations;
- To take appropriate measures in climate change mitigation by means of reducing its anthropogenic GHG emissions and improving the quality of its absorbents and accumulators of GHG;
- However, pursuant to art. 6 of UNFCCC the Parties undertook obligations concerning enlightenment and personnel training and public communication, which Ukraine fails to fulfil too. Among them are:
- developing and implementing educational programs and public communication on climate change issues and its consequences;
- public access to information on climate change and its consequences;
- participation of the public in climate change issues review and in developing of appropriate measures of reaction;
- preparation of scientific, technical and management personnel;
- developing materials with the aim of enlightenment and public communication on climate change, its consequences and exchange of such materials;
- development and carrying out programs in the field of education and personnel training.
- Pursuant to art.2 of the Kyoto Protocol, Ukraine is obliged to pursue the policy and take measures for achievement of certain goals. Among them the following are not fulfilled:
- improvement of energy efficiency ratio;
- protection and improvement of absorbents and accumulators of GHG which are not regulated by the Montreal Protocol;
- sustainable and rational farming in the context of climate change;
- researches, development, wide use and establishment of new and renewable types of energy, technologies of absorption of carbon dioxide and contemporary environmentally safe technologies;
- encouragement of appropriate reforms in order to promote realization of the policy and measures of limiting or reducing GHG emissions which are not regulated by the Montreal Protocol;
- measures of restriction and/or reducing of GHG emissions which are not regulated by Montreal Protocol.
In the claim, EPL asked the court:
1) To admit unlawful non-fulfilment of climate change obligations by the Ministry of Environment undertaken pursuant to the norms of national and international legislation; 2) To oblige the Ministry of Environment to take appropriate measures, including measures on establishment of climate protection policy on reducing GHG emissions in Ukraine; 3) Bring to account persons guilty of violation of the legislation.
Hence, there are violations of the following legal acts:
- Constitution of Ukraine;
- Law of Ukraine «On international treaties of Ukraine»;
- the United Nations Framework Convention on Climate Change;
- the Kyoto Protocol;
- Vienna Convention on law of international treaties;
- Presidential Decree on the coordinator of measures on fulfilment of obligations of Ukraine in accordance with United Nations Framework Convention on Climate Change and Kyoto Protocol to United Nations Framework Convention on Climate Change;
- National Action Plan on realization of provisions of Kyoto Protocol to United Nations Framework Convention on Climate Change;
- Presidential Decree on bringing into force the decision of National Security and Defence Council of Ukraine from 15 of June 2007 “On state and problems on implementation of United Nations Framework Convention on Climate Change by Ukraine”.
The first court hearing took place on June 17, 2008.
On July 22, 2008, the Commercial Court of Lviv Region ruled a decision in favour of EPL, by which sustained all plaintiff’s claims to the Ministry of Environment.
The Ministry of Environmental Protection filed an appeal and on February 2, 2010 Lviv administrative court of appeal sustained appeal of the Ministry of Environment on the judgment of the court of the first instance on the decision to admit unlawful the inaction of the Ministry of Environment on fulfilment of obligations on climate change. Hence, the decision of the court of the first instance is reversed, and a claim of EPL is dismissed.
The decision of Lviv administrative court of appeal is based on the following arguments:
The coordinative role of the Ministry of Environment on fulfilment of obligations in accordance with UN Convention on Climate Change is put down only to accumulating information annually submitted by the Ministries and central bodies of executive power on volumes of usage of all types of fuels and types of industrial and agricultural activities which lead to anthropogenic emissions.
The State Fund of Environmental Protection at expenses of which the Ministry of Environment has to finance the works towards fulfilment of obligations on climate change, must be formed from the effluent charges, at the expenses of dues for violation of norms and rules of environmental protection and at the expenses of target and charitable contributions including “international charitable organizations”.
The Panel of Judges agreed with the position of the defendant that because of absence of real mechanism of fines (dues) for pollution because of lack of funds, there is no possibility to finance appropriate works towards fulfilment of obligations on climate change in accordance with national and international legislation, while incapability to finance is not violation of national and international legislation.
The court states that there are other bodies authorized to fulfil relevant tasks and conduct activity in accordance with the UNFCCC and Kyoto Protocol.