Exploring Climate Litigation Trends: A Special Issue Discussion

Mar Antonia TIG, the director for global climate change litigation at the Sabin Center for Climate Change Law at Columbia Law School, welcomes everyone to the webinar. The webinar is about the launch of a special issue co-edited by Mar Antonia TIG and Otto in the Chinese Journal of Environmental Law.

Ben, one of the co-editors and chief of the journal, congratulates all authors of the special issue on climate litigation in the Chinese Journal of Environmental Law. He acknowledges the work of Mar Antonia and Otto, as well as the Sabin Center for Climate Change Law at Columbia University for making the special issue possible.

Mar Antonia TIG mentions the peer review network of scholars on climate change litigation at the Sabin Center. Over 130 volunteers from 70+ jurisdictions contribute to maintaining the climate litigation database, providing accurate and comprehensive information on climate litigation globally.

Mar Antonia TIG expresses gratitude for the partnership with Otto and the Chinese Journal of Environmental Law. The collaboration allows for sharing scholarship on climate litigation from various jurisdictions, enhancing the understanding of climate litigation worldwide.

The speaker reflects on the process that led to the current moment, mentioning that the idea for the project emerged in February 2022 while they were still a professor at Wuhan University. They acknowledge working with individuals like Ben Boor and Chen Bouin. Despite moving back to the Netherlands, the speaker retained their position as the managing editor of the Chinese Journal of Environmental Law until Peter K took over.

The speaker expresses gratitude towards individuals like Bena Meer for taking over responsibilities, Peter Corn for replacing them, and acknowledges the absence of contributors like AA Balova, Leam Mingst, Hermon O, and M Zoo, highlighting the value of their papers despite their absence.

The speaker thanks Maran for their collaboration and praises the network and reporters for their excellent work. They express appreciation for Otto and the overall experience of working together.

The speaker introduces the upcoming presentation by Gaston on Argentina, acknowledging Mar Antonia for leadership in the publication of the special issue. They express gratitude for the opportunity to provide a critical analysis of the climate litigation scenario in Argentina.

The speaker highlights the importance of their academic piece as the first to address the climate change litigation scenario in Argentina. They emphasize the gap in existing literature and the intention to provide an in-depth analysis of identified cases, offering a critical and prospective assessment of the litigation scenario.

The speaker presents a table in the paper containing 12 identified cases based on specific criteria. They discuss the issues at stake in these cases, including actors involved, judicial avenues, legal grounds, climate arguments, and remedies sought. The cases cover a range of topics such as project focus, challenges against power plants and offshore exploration, ecosystem protection, livelihood concerns, and constitutional challenges.

Climate litigation in Argentina is still at an early stage, with only 12 identified cases, which is relatively low compared to other global jurisdictions. The limited variety of cases, with nine focusing on projects and mitigation, indicates the incipient nature of climate litigation in the country. Unlike neighboring countries like Colombia, Brazil, and Chile, Argentina lacks any climate rulings or judgments addressing climate law or damage as a material issue.

Adaptation cases are expected to proliferate in Argentina due to its vulnerability, with a potential increase in transition litigation related to the country's significant lithium reserves. The strategic approaches of NGOs in filing cases have led to a focus on project and ecosystem vulnerabilities, with a limited number of cases addressing adaptation concerns. The absence of transition litigation, despite Argentina's role in the lithium triangle, suggests a potential future trend in climate litigation.

Climate litigation in Argentina is projected to expand and accelerate in the coming years, especially under the current government's focus on climate change. The government's initiatives are expected to create more opportunities for climate actions and policies, leading to a radicalization of existing consensus on environmental issues. Legal opportunities for climate change litigation in Argentina are strengthened by broad standing clauses, various legal grounds in international human rights, constitutional, civil, and environmental law, and a judicial receptivity to environmental cases.

The emergence of climate litigation in Argentina may influence Supreme Court environmental case law by emphasizing the centrality of environmental principles like prevention and the precautionary principle. The judicial receptivity and active role in environmental law are crucial for environmental processes, potentially shaping future climate litigation outcomes in the country.

The discussion highlighted sustainability principles in environmental decisions, including the concentric perspective that considers public, private, and ecosystem interests. Recent case law in the Supreme Court introduced the induo pronatura and induo pro Aqua Principles as criteria for decisions favoring ecosystem protection. The polycentric view emphasized broader considerations of rights holders, including future generations.

The importance of the active role of the shash in environmental cases was emphasized, allowing for flexibility to adjust and manage proceedings effectively. This active role implies adaptability and responsiveness in handling environmental conflicts to ensure a balanced approach to environmental protection.

The overview of Japanese climate litigation discussed cases in Sendai, K, and yosa, focusing on efforts to halt newly built Coal Fired power plants. The cases highlighted the use of personal rights in legal actions against greenhouse gas emissions and air pollution, showcasing the evolving landscape of climate litigation in Japan.

The first Japanese climate litigation in Cai in 2017 involved stiens challenging the operation of a new Coal Fired power plant in Sendai. While the case aimed to address global warming concerns, it primarily focused on air pollution impacts due to challenges in proving individual rights violations from greenhouse gas emissions. The district court and high court rejected the claims citing lack of concrete danger.

Legal challenges in cases involving the construction of new Coal Fired power plants faced hurdles in proving damages from carbon dioxide emissions and air pollution. Despite citizen claims, the district court and high court did not recognize legally protected individual interests affected by climate change or emissions. The Supreme Court's refusal to hear the case further complicated the legal landscape.

The ongoing appeal in the C Civil Loc case involves citizens seeking injunctions against Coal Fired power plants, citing violations of personal rights to life, water integrity, health, and a healthy life. The appeal also includes demands for emission reductions to achieve zero carbon dioxide emissions by 2040. The case underscores the use of personal rights as a basis for injunction requests in various contexts related to personal well-being and environmental protection.

In the current climate case in Japan, a new variant has raised concerns about the impact of climate change on people's health. The Japanese courts have found it challenging to establish a violation of health rights due to the abstract nature of climate change dangers. The court believes there are uncertainties regarding the types of damages and how citizens could suffer.

In a specific case, citizens requested the cancellation of an environmental impact assessment notice, arguing that the simplified procedures used were illegal. The District Court ruled that the notice was legal under rationalized guidelines allowing for simplified procedures. The case is currently under appeal with citizens contesting their lack of standing in relation to greenhouse gas emissions.

Citizens in climate cases in Japan aim to combat climate change and also address air pollution issues. Due to the difficulty in proving damages or acquiring standing under Japanese law, citizens focus on both climate change and air pollution arguments. The acceptance of citizens' claims related to climate change by the court would be revolutionary and could contribute to raising awareness, even if the claims are rejected.

The speaker, who has autism, requests that any questions be sent via email rather than asked during the webinar. This is because they find it challenging to react spontaneously. The email address for questions can be found in the article, and the speaker is willing to take the time to answer any inquiries. The audience is thanked for their understanding and for listening.

The speaker expresses gratitude for the opportunity to share thoughts and transitions to the next speaker. Professor Chin Chena, an Editor in Chief of the Chinese Journal of Environmental Law, briefly joins the event despite the Chinese New Year celebrations. The Year of the Dragon has just begun, and Professor Chin Chena acknowledges the importance of the event and the launch of a special issue of the journal.

The speaker expresses gratitude towards guest editors Alo and Andeira for organizing a successful project that attracted numerous contributors and important articles on education. They are proud of the significant and wonderful articles published in the special journal, which marks the first time the CJ has released a special issue. The opportunity was given to the topic of climate litigation, thanking all guest editors and contributors.

The speaker mentions that from the Chinese perspective, the upcoming year is the Year of the Dragon, symbolizing power and luck. They express hope for judicial power to promote climate control efforts and implement climate regimes internationally and nationally, aiming for joint efforts and improvement in the coming year.

The speaker extends New Year wishes to Professor Chin Chau, emphasizing health and happiness for him, his family, and friends in the Year of the Wooden Dragon. They express good wishes for a happy and fruitful year ahead.

The speaker introduces Zuna from South Africa as the next speaker, expressing hope for J to join the session for a longer period. They pass the floor to Zuna, acknowledging technical difficulties and expressing understanding for the situation.

Zuna from South Africa greets the audience from Johannesburg, mentioning the time and expressing excitement about the article presentation. They congratulate the Chinese Journal of Environmental Law for the special inaugural issue and outline their plan to provide an overview of their article, leaving detailed parts for individual reading due to time constraints.

Zuna's article is titled 'Rights-based Climate Litigation in South Africa and the Netherlands,' aiming to understand contributions from both global North and South jurisdictions and their implications for global climate litigation. They developed an analytical framework to draw comparative lessons and determine transboundary elements emerging from different jurisdictions.

Zuna's transnational analytical framework includes analyzing the nature of activities, actors involved in litigation, issues of local standing, and jurisdiction differences. By considering these elements, Zuna aims to identify any transboundary aspects and draw comparisons between different jurisdictions.

The speaker discussed the various transnational norms and principles considered by the court, focusing on 10 or 11 different frameworks. However, for the article, the analysis was narrowed down to two analytical frameworks. These frameworks examined the transboundary activity of the claims in each case and how the global nature of the problem influenced the court's decisions. Two landmark cases highlighted were the Earthlife Africa Johannesburg case in South Africa (heard on November 19, 2020) and the State of Netherlands v. Urgenda case in the Netherlands (heard in various courts, culminating in the Dutch Supreme Court on December 20, 2019). Both cases were significant for introducing rights-based claims in climate litigation in their respective jurisdictions.

The speaker presented key findings from the analysis, highlighting the transformative nature of transnationalism in contemporary societies. Both the South African and Dutch cases demonstrated how global concepts and international law interpretations influenced transnational climate governance. Common threads in both cases included conceptualizing climate change as a global challenge, interpreting domestic provisions with international jurisprudence, and introducing fundamental human rights provisions with jurisdiction-specific nuances. The comparison revealed the emergence of climate governance concepts from such precedents in different jurisdictions.

The speaker offered a critical perspective on the limitations of the court decisions, noting a discrepancy between recognizing climate change as a global crisis and providing remedies limited to claimants within their jurisdictions. This raised the question of how to address such limitations and hinted at the need for broader considerations in climate governance. The speaker also highlighted the shaping of climate governance at a national level through climate litigation but pointed out the absence of a developed concept of transnational climate governance, leaving room for further exploration and development in this area.

The speaker introduces the first climate change litigation lawsuit in Italy, Judit Universal, brought by an Italian NGO, ASud, along with 20 other applicants. The case is pending before the Civil Court of Rome, with the first instance judgment expected in a few days. Other climate change cases in Italy, such as against the major Italian oil and gas company, Eni, are also mentioned.

Judit Universal is highlighted as a strategic climate change litigation case with a systemic mitigation approach. The case, supported by NGOs and a transnational network of lawyers, challenges Italy's insufficient mitigation actions. It is categorized as an uranda-style case, based on legal obligations from the Paris Agreement, human rights arguments, and tort law.

The applicants in the Judit Universal case emphasize future mitigation efforts rather than past emissions. Their claim centers on Italy's inadequate plans for 2020-2030, seeking a significant reduction in emissions to 92.2% compared to 1990 levels. The preventive nature of the claim is noted to be both stimulating and challenging.

The discussion shifts to the role of international human rights law in the Judit Universal case, particularly focusing on the European Convention of Human Rights. The Italian judicial system's approach to international law is highlighted, with considerations for how the judge will interpret and apply human rights norms in the context of climate change litigation.

The applicants in Judit Universal advocate for the right to a stable and safe climate, emphasizing this aspect in their argument. The case is positioned as a significant contribution to discussions on climate rights, aligning with future presentations on the same theme. The focus on advocating for a stable and safe climate adds a unique dimension to the overall litigation strategy.

The speakers discuss the fundamental right to a healthy environment, emphasizing its importance as a prerequisite for enjoying other fundamental rights. They refer to the Italian Constitution, specifically Article 2, which enshrines an open catalog of fundamental rights. The judges' approach to this point in a case is highlighted as crucial.

The discussion shifts to strategic litigation in Italy, focusing on the state of affairs. The speaker, Mat, delves into the 'tale of tort,' a complex aspect of Italian law. He explains the open Clause of liability in the Italian tort system, drawing comparisons to the French and German conceptions. The challenges of establishing state liability under Italian law, particularly in cases related to climate change, are explored.

Mat discusses the potential impact of the reform of the Italian Constitution on strategic litigation. He mentions the revision of Article 9 in 2021, which now recognizes the state's duty to protect biodiversity and the environment for future generations. This revision may provide a basis for enshrining specific objectives in Italian public policies related to climate change mitigation and adaptation. The potential for Italian courts to override current conceptions of the separation of powers is considered under this new framework.

Judi Universal aims to recognize a right to a stable climate in the Italian legal system, potentially based on article nine and the open catalog of rights under article two of the Constitution. However, there is still a narrow conception of the separation of power Doctrine, especially concerning State liability, which hinders successful outcomes in climate litigation.

Antoan discusses an ongoing climate litigation case in Belgium known as climat Zack, which involves an NGO and private citizens suing public authorities over climate change issues. The case has sparked controversy in Belgium and has already seen an appeal decision that corrected some incoherencies in the initial judgment.

In the climat Zack case, over 60,000 private citizens have joined the NGO in suing public authorities over climate change impacts. These citizens were granted standing based on their personal suffering from the effects of climate change, highlighting the unique involvement of private individuals in environmental litigation.

Standing, a crucial aspect in climate change litigation, was highlighted in the Belgian legal system where private citizens and NGOs were granted standing to address global problems. Recent legal reforms, influenced by the iris convention ratified by Belgium, facilitated easier standing for NGOs. This contrasts with many jurisdictions where standing remains a significant obstacle, making Belgium's approach noteworthy.

The complexity of federalism in Belgium was evident in a climate change case with four defendants representing different governments and legislators due to Belgium's intricate federal structure. This complexity arises from multiple public authorities having equal competence in managing climate change, showcasing a cross-sectoral issue. The dynamics of having multiple defendants found in violation and negotiating around this complexity add an interesting dimension to the case.

The climate change case in Belgium is unique as it combines human rights and traditional Belgian liability, presenting a hybrid legal basis. While some countries rely solely on extra-contractual liability of public authorities or direct effect of human rights provisions, Belgium's case articulates both approaches. The judgment on appeal effectively navigates this legal mix, offering insights for comparative analysis in other jurisdictions.

A significant development in the case was the request for a binding injunction alongside a declaration of violation, demanding immediate action from the governments. Initially rejected on the principle of separation of powers, the court of appeal later imposed a quantified binding injunction on public authorities, signaling a shift in judicial approach. This decision raises questions on legitimacy, normative power of judges, and the methodology for quantifying obligations in climate change cases.

During the first instance procedure, a novel third-party intervention request on behalf of trees introduced a unique aspect to the Belgian legal system. Despite being rejected, the request highlighted activist lawyering and the concept of rights of nature, challenging traditional legal norms. The rejection of the request prompts reflection on the reasons behind such interventions and the potential impact on future legal proceedings.

The discussion touches on the concept of activist lawyering, where victories are achieved outside the courtroom through losing. This strategy is linked to a strand of scholarship in the US and is seen as a way to win despite legal losses.

Both the Court of Appeal and the tribunal in Belgium have extensively relied on the case law of the European Court of Human Rights, based in Strasbourg. This reliance is crucial due to the application of the European Convention on Human Rights, which is significant for all Council of Europe member states.

The Belgian case may play a role in pending cases in Strasbourg, potentially influencing the court's decisions. There is a question of whether decisions from Strasbourg will differ in applying the convention compared to the Belgian court, creating a complex legal situation.

The speaker emphasizes the importance of bringing visibility to national cases like the Belgian one. This visibility is crucial for highlighting legal, ethical, and methodological questions in climate change litigation, contributing to a broader understanding of legal processes.

Various reporters from different jurisdictions, including Argentina, Japan, South Africa, Italy, and Belgium, have presented their reports. The Enda case from Belgium has been cited as an example to follow in multiple jurisdictions, showcasing its significance in the legal landscape.

The speaker introduces the topic of the right to a stable climate, emphasizing its importance in climate litigation. Referring to cases like the Oranda case, the discussion highlights the increasing trend of plaintiffs invoking fundamental constitutional rights in climate-related legal actions.

The right to a stable climate, unlike the right to a healthy environment, is not recognized in any constitution worldwide. Legal sources derive this right from fundamental constitutional rights such as the right to life, liberty, and property.

The legal debate on the right to a life-sustaining climate system gained prominence in the Juliana proceedings, where the lawsuit claimed that US government policies violated constitutional rights, including the right to a stable climate. Justices emphasized the fundamental nature of a climate system capable of sustaining human life.

In Europe, legal cases like Enda and the German Federal Constitutional Court decision highlighted the implicit obligation to protect the right to a life-sustaining climate system. The court rulings emphasized the duty to safeguard life and health against climate change risks, setting new legal standards for climate protection.

The US Supreme Court recognized the right to a life-sustaining climate system as part of the right to a clean and healthy environment. Justice Wilson further emphasized that this right extends beyond environmental concerns, highlighting the interconnectedness of a stable climate with fundamental rights.

The concept of the right to a life-sustaining climate system is subsumed in the constitutional right to the environment and due process rights. It is seen as necessary for enabling the exercise of other rights, reflecting the idea of derivated rights.

The right to a life-sustaining climate system raises key issues such as who is entitled to this right, the nature of the claim, and specific problems like political conflicts and constitutional freedoms. It is understood as the right to live in a climate system that can support life without exceeding tipping points.

In legal discourse, the right to a life-sustaining climate system is viewed as a constitutional right, essential for the realization of other constitutional rights. It is seen as a predicate for all constitutional rights and can be considered an aspect of the right to life.

Presentations that combine different jurisdictions complement reports focusing on specific areas. Contributions like Eva Balova's analysis of the aviation sector across jurisdictions provide valuable insights and commonalities. Such cross-jurisdictional perspectives enhance understanding in climate litigation.

Authors are encouraged to explore pending cases and legal arguments in climate litigation. Highlighting specific pending cases and legal arguments can shed light on the evolving landscape of climate litigation and provide insights into future trends and challenges.

When imposing a binding target on a public authority, there needs to be a procedure in place to ensure compliance. In a specific case where a target was imposed on public authorities in Belgium, there was no direct procedure for control. However, there was mention of reporting back to the court and the potential imposition of substantial financial penalties, amounting to millions, to be paid by public authorities to an NGO for environmental protection purposes.

In Belgium, if public authorities do not respect the quantified target imposed on them, there is a possibility of facing financial penalties amounting to millions. These penalties would be transferred to an NGO for environmental protection purposes. The question arises whether the court will go as far as imposing such penalties, highlighting the need for creative incentive processes to ensure compliance and involvement of public authorities.

Apart from getting governments to apply court rulings, it is crucial to ensure public acceptance of legal procedures. In Belgium, a decision by three French-speaking judges was criticized by the Flemish Minister for the environment, illustrating the political complexities. To avoid crises and maintain commitments, it is essential to engage the general public in accepting legal procedures to prevent backlash and ensure continuity in environmental protection efforts.

Italian judges demonstrate a recognition of international obligations, particularly those stemming from EU law. The question arises about the specific obligations related to adopting and upholding targets under EU law. The evolving governance framework in the EU, such as the 2040 targets trajectory, influences domestic governance frameworks of member states. The relevance of EU law obligations in the Italian legal system and their impact on other European countries remains a significant aspect to consider.

In Argentina, there is a growing possibility of a climate ruling following a recent development in the Green Peace Argentina case. The public prosecutor intervened in the case, submitting a 40-page opinion focusing on climate arguments, which supported the plaintiff's stance. This intervention significantly increases the chances of a climate ruling, as previous court rulings mainly focused on environmental concerns rather than climate issues.

There is anticipation of increased climate litigation in Argentina, similar to the rise seen in Brazil during the previous administration. With a president who denies climate change, litigation may play a crucial role in shaping climate and environmental regulations in Argentina.

It is essential to distinguish between climate litigation cases aimed at policy change and those targeting specific sources of emissions. Cases against emission sources have a higher likelihood of implementation. For instance, the Helco case successfully halted a biomass power plant project through legal reasoning, showcasing the practical impact of such litigation.

Deriving the right to a stable climate from the right to a healthy environment is easier legally, but it may have geographical limitations based on constitutional provisions. However, deriving this right from fundamental rights like the right to life can have a more significant impact, as these rights hold greater legal weight and are enshrined in democratic state constitutions.

EU law plays a significant role in climate litigation cases in EU countries like Belgium. It requires showing that public authorities failed to take sufficient action, often evidenced by letters from the European Commission. The complexity arises from different calculation systems, benchmark years, percentages, and deadlines, making it challenging to determine the stringency of EU law compared to domestic laws. Despite this, EU law simplifies proving harm, wrongdoing, and lack of action within the EU.

Pending advisory opinions, such as the three different ones under consideration, could potentially influence domestic litigation. These opinions may set precedents or provide legal interpretations that impact how climate-related cases are argued and decided in national courts. The insights and rulings from advisory opinions could shape the legal landscape and strategies employed in future climate litigation cases.

The discussion highlights the differences between strategic and project-based litigation in the context of climate governance. While the Belgian outcome is seen as welcome, other jurisdictions may interpret the bindingness of commitments differently due to the soft governance framework. Advocacy for project-based litigations, especially in relation to new projects like mining or gas projects, is emphasized as a way to achieve concrete results. The importance of considering international equity questions in participation and decision-making processes is also noted.

EU law has been utilized in climate litigation cases to defend government positions, citing EU directives like LULUCF, effort-sharing decisions, and set levels of ambition. The discussion mentions the Orenda case as an example where EU law was invoked to limit further action. However, for cases with a horizontal and policy focus, EU law may not provide adequate support, as noted by the participants.

The advisory opinions of the Inter-American Court are highlighted for their significant impact on climate litigation in Argentina and other regions. These opinions provide authoritative interpretations of human rights treaties, which become part of national laws and must be applied by judges. The effect of these opinions on climate emergency cases is deemed crucial for shaping climate litigation outcomes in the entire region, emphasizing the complex relationship between international conventions and national laws.

Scholars emphasize the importance of determining effective ways for international advisory to influence legal systems, especially in jurisdictions like Belgium, France, and Germany. The ideal scenario involves the ICJ urging Western countries to be accountable for their actions, although practical application in Western courts is unlikely. Scholars are urged to actively research and find feasible methods for international advisory to impact legal systems.

The speaker expresses concern over the increasing need for climate litigation due to unfavorable election results in democratic countries like the Netherlands and the potential leadership of individuals like Trump. Reference is made to the likelihood of more climate litigation in the future, posing a significant challenge for organizations like the Sabin Center for Climate Change Law to monitor and address. The speaker wishes them luck in their endeavors.