Korean Biomass Plaintiffs v. South Korea

On September 28, 2020, more than 60 solar power plant owners and residents near biomass plants sued the South Korean government in the South Korean Constitutional Court, challenging biomass subsidies on climate and pollution grounds. The plaintiffs allege that the South Korean New and Renewable Energy Promotion Act and regulations treat biomass generation as renewable and low or zero carbon, thus making it eligible for significant subsidies. According to the plaintiffs, however, biomass generation leads to forest devastation, higher CO2 emissions than coal, and local air pollution. As a result, South Korea's biomass policy violates South Korean constitutional environmental rights. The plaintiffs also alleged that Korean biomass policy infringes on the property rights of solar power plant owners and other renewable energy developers. They argued that the false classification of biomass burning as carbon neutral and renewable diverts subsidies away from other, truly carbon neutral resources. On October 27, 2020, the Constitutional Court dismissed the case. Under Article 68(1) of the Constitutional Court Act, a constitutional complaint requires that an individual’s constitutional rights be directly infringed by an act or omission of public authority. The Court held that the provisions in question, which define certain solid fuels as renewable and promote their use, constitute general policy measures that, by themselves, neither impose legal rights or obligations on the plaintiffs nor alter their legal status. The Court further noted that, aside from public controversy and local opposition surrounding the biomass development projects, there was no evidence that the provisions directly infringed upon the plaintiffs’ constitutional rights. Accordingly, the Court dismissed the petition, finding that the plantiffs failed to demonstrate a sufficient legal nexus between the alleged infringement and their constitutional rights.