Case: Atmospheric Trust Litigation
Region: Ukraine
Parties: plaintiff: NGO “Environment-People-Law” (EPL); defendant: the Cabinet of Ministers of Ukraine (CMU), Ministry of Environment and Natural Resources of Ukraine (Ministry), National Agency of Environmental Investmets (NAEI).
Goal of the case: Protection of present and future generations from negative consequences on climate change.
The claim was prepared as part of the international initiative «Atmospheric Trust Litigation», which proposes to solve the problem of global warming by causing influence on governments through litigation.
Essence of the issue:
In accordance with Article 13 of the Constitution of Ukraine, the atmospheric air on the territory of Ukraine is the property of the Ukrainian people. The state authorities execute their rights of owners on behalf of the Ukrainian people.
The defendants are the Ukrainian authorities that are responsible for ensuring proper climate policy.
Claims of the suit are motivated by omissions of the defendants with respect to their failure to exercise duties imposed on them by the legislation on the regulation and management of activities affecting weather and climate by reducing greenhouse gas emissions to ensure compliance of enterprises, institutions and organizations with Article 16 (2) of the Law of Ukraine “On the Protection of Atmospheric Air” .
In particular, according to Article 16 of the Law of Ukraine “On Atmospheric Air”: activities aimed at artificial changes in the state of the atmosphere and atmospheric phenomena for economic purposes may be carried out by enterprises, institutions, organizations and citizens – business entities only with permits issued by a specially authorized central body of executive power for environmental issues or its territorial bodies, in consultation with the specially authorized central body of executive power for health protection or its territorial bodies, local executive authorities and local self-government bodies. The procedure for approval and issuance of permits shall be established by the Cabinet of Ministers of Ukraine.
The indicated activity of enterprises that affects weather and climate must be carried out through the issuance of permits, but they are not issued due to the lack of a legal basis.
EPL appealed to the court with a claim regarding obligations of responsible bodies in the field of climate change and air to develop such legislation.
Claims of the suit:
concerning the Cabinet of Ministers of Ukraine:
– to recognize illegal the omissions of the Cabinet of Ministers of Ukraine with regard to ensuring the development of state policy in the area of atmospheric air protection, in particular, the absence of normative regulation on the issuance of permits for greenhouse gas emissions and the establishment of limits on greenhouse gas emissions and informing on work on the regulation of the mechanism for reducing greenhouse gas emissions;
– to oblige the Cabinet of Ministers of Ukraine to develop and approve the procedure of issuing permits and to regulate the issue of limits for greenhouse gas emissions within six months;
– to oblige the Cabinet of Ministers of Ukraine to prepare and, within one month after the court decision has entered into force, to publish information on the state of implementation of measures envisaged by the National Action Plan, as required by the provisions of the Decree of the President of Ukraine “On additional measures to ensure openness in the activities of state authorities” of August 1, 2002 № 683;
Concerning the Ministry of Environment and Natural Resources of Ukraine :
– to declare illegal omissions of the Ministry of Environment with regard to the formation and implementation of state policy in the area of air protection, regulation of negative human impact on climate change and implementation of the requirements of the UN Framework Convention on Climate Change regarding absence of legal regulation of the mechanism for reducing greenhouse gas emissions;
– to oblige the Ministry of Environment to develop and approve within six months the relevant rules, norms and methodologies for regulating the mechanism for reducing greenhouse gas emissions;
concerning the State Agency of Environmental Investments
– to declare illegal omissions of the State Agency of Environmental Protection on the implementation of the state policy in the area of regulation of negative anthropogenic influence on climate change, as well as making proposals on its formation, in particular concerning the establishment of a mechanism for reducing greenhouse gas emissions;
– to oblige the State Agency of Environmental Investments to elaborate within two months the proposals on issuing permits and setting limits on emissions of greenhouse gases for enterprises, institutions, organizations and to submit them in accordance with the established procedure to the Ministry of Environment and the Cabinet of Ministers of Ukraine.
EPL’s claim was not satisfied by courts because there no certain obligations of the defendants to prepare and adapt legislation in the area of reducing greenhouse gas emissions even if they are responsible for this area and have the right to adapt legislation.
Text of court decisions can be found here:
http://www.reyestr.court.gov.ua/Review/18904279
http://www.reyestr.court.gov.ua/Review/23566211
http://www.reyestr.court.gov.ua/Review/34684361
