complaint

Woodpecker et al. v. South Korea - complaint

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This is a constitutional claim against the South Korean Government for failing to provide constitutionally required protection of the fundamental rights of the plaintiffs from the threat of climate change by setting the NDC at 40% reduction from 2018 levels in the Art. 3 para. 1 of the Enforcement Decree of the Carbon Neutrality Act. 
The claimed rights include right to life, right to pursue happiness, right to general freedom, right to property, right to healthy environment, State’s obligation to provide its people from disasters, and State’s obligation to protect the fundamental rights of the people. 

The 62 plaintiffs are children under age of five, including one fetus (named “Woodpecker”, who was later born after the filing of the case). The plaintiffs argue the current NDC (i) depletes South Korea’s per-capita-based carbon budget for 1.5 degrees and 1.7 degrees before 2030, (ii) falls short of the global reduction pathway presented in the IPCC 1.5 Special Report, and (iii) contributes to the Emission Gap pointed out by the UNEP. The plaintiffs argue that the current NDC will result in disastrous level of climate change leading to violation of their fundamental rights.

On February 19, 2024, the Court merged the case with two other constitutional cases challenging the same NDC, and one case challenging the implementation plan of the NDC, the 1st Carbon Neutrality Basic Plan. The Court also set a public hearing for the case on April 23, 2024.

On August 29, 2024, in a unanimous decision, the Constitutional Court found that Article 8 Paragraph 1 of the Framework Act on Carbon Neutrality and Green Growth violates the right to healthy environment under Article 35 of the Constitution, and ordered the National Assembly to amend the law by February 28, 2026.

The Constitutional Court first acknowledged that the right to healthy environment under Art. 35 of the Constitution addresses the harm and risks related to climate change and that the State has an obligation to protect such rights by mitigating the cause of climate change and reducing the harm by adapting to climate change. The Court then ruled that in order to appropriately address such issue, the State's measures on climate change (i) must be based on South Korea's share of efforts in light of the global efforts based on scientific facts and international standards, (ii) should not impose excessive burden to the future, and (iii) must be based on legal framework that ensures continuous reduction of greenhouse gas.

In light of these standards, the Court ruled that Art. 8 Paragraph 1 of the Act has failed to meet these standards by not prescribing any targets or plans between the period 2031 - 2049, which inevitably results in postponing of reduction efforts. The Court also ruled that the provision violated the "principle of legislative reservation" stating that the the framework of the reduction pathway up to 2050 must be set by law, by the Legislature, considering its implications on various fundamental rights, and the fact that the future generation has limited opportunity to present its interest in the process.
On the 2030 reduction target set by the Enforcement Decree, the Court ruled that it is unable to identify a single standard or criteria to determine the appropriate share of South Korea in the global efforts and therefore cannot conclude that the target is in violation of the State's obligation. However, the Court also stated that it does not mean the State is doing its best on climate mitigation.

On the Carbon Neutrality Plan, the Court was divided. The majority, 5 justices, opined the Carbon Neutrality Plan is unconstitutional because the 40% reduction is based on "gross emission" of the base year 2018, and "net emission" of the target year 2030. Because the base year excludes carbon removal by LULUCF and the target year includes carbon removal by LULUCF, the majority opinion ruled that the actual reduction efforts of the plan does not meet the stated 40% and has violated the mandate of the Enforcement Decree. On the other hand, 4 justices dismissed the claim stating that because the language of the provision of the Act did not distinguish gross emission and net emission, such discrepancy would not amount to unconstitutionality. As the Constitutional Court Act requires super-majority (2/3) for decision of unconstitutionality, the claim on Carbon Neutrality Plan was dismissed.

Woodpecker et al. v. South Korea

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

Tradable permits are market-based tools that grant permission for specific activities, frequently used to regulate emissions. These permits can be issued within a trading system to manage environmental impacts.

Heavy precipitation refers to any form of weather where substances fall from the sky, including rain, snow, sleet, or hail.

A drought is an extended period of unusually dry weather marked by a significant and sustained lack of precipitation, falling below a specific threshold over a large area for more than a month

Activities involving the catching, processing, and selling of fish for food, recreation, and industry.

The activities of industries that transforms raw materials into finished goods through industrial processes.

Actions to adapt human health, healthcare systems and well-being to climate change.

The activities of industries involved in the production, distribution, and sale of energy, including electricity, gas, and renewables.

Air pollution involves harmful contaminants in the air, affecting both indoor and outdoor environments. It can lead to health issues like respiratory diseases and heart problems, and climate impacts such as global warming. Pollutants can damage plants, trees, habitats, and water bodies like rivers and lakes.

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

Actions and measures to adapt and increase resilience of societies and the economy to climate change.

Actions or measures to adapt freshwater systems to climate change.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

This sector involves managing waste treatment, sanitation, pollution control and environmental cleanup.

People who are less able to respond to the effects of climate change due to having limited financial or physical assets

Any substance with chemical properties that can cause physical harm to people or damage the environment, including ammonia, carbon monoxide, phosphine, chlorine, arsenic, cadmium, mercury, pesticides, dioxins, microplastics, benzene, asbestos, aflatoxins, fluoride, methanol, and toxins from marine sources.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Risks to the ecosystem health of the marine environment, including ocean warming, ocean acidification, and ocean deoxygenation, harming biodiversity, species health, ecosystem services, and coastal community livelihoods.

People who have left their homes, whether through force, voluntarily, or a mixture of both

A target to reduce the prevalence of a greenhouse gas over a specific time frame

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Production of electricity and heat from solar irradiation.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

Conditions that enhance the feasibility of adaptation options. Enabling conditions include finance, technological innovation, strengthening policy instruments, institutional capacity, multi-level governance and changes in human behaviour and lifestyles.

Climate change impacts our society by disrupting the natural, economic and social systems we depend on. Physical hazards and underlying vulnerabilities can lead to increased resource competition for food and water, which can heighten the risk of conflict.

Hot temperature extremes are daily maximum temperatures  that were exceeded on average once in a decade or once in 50 years, and includes heatwaves.

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

woman and genders outside of the gender binary

Codes and standards are regulatory instruments that specify minimum standards to protect health and safety. This ranges from performance standards, which prescribe outcomes while allowing flexibility to achieve compliance, to the more prescriptive approach of technology-specific standards.

A potent, short-lived greehouse gas, largely released from livestock, fossil fuel extraction and waste management.

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

This sector involves activities to move goods and people, alongside the storage of products.

The cryosphere is the frozen part of the Earth—it includes sea ice, glaciers, snow, and ice sheets. It helps regulate the climate and weather by reflecting sunlight. Rising temperatures are causing melting, leading to sea ice loss, glacier collapse, and glacier landslides and avalanches. This threatens the livelihoods of around 700 million people who rely on the cryosphere for food, water security, and cultural practices.

Geohazards are adverse geological phenomenon's that are capable of causing widespread damage or loss to property, life and the environment, such as earthquakes, volcano eruptions and tsunamis. Climate change can increase the frequency and severity of some geohazards, such as landslides, and soil erosion.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

Woodpecker et al. v. South Korea - complaint

Target

Policy instrument

Risk

Impacted group

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance