In a July 2020 decision said to have set “a precedent for courts around the world,” the Irish Supreme Court invalidated the government’s climate strategy.Footnote ¹ Friends of the Irish Environment v. Government of Ireland & Ors (hereafter FIE) is indeed a landmark decision: though Irish courts are particularly cautious and deferential to the executive, litigants succeeded in convincing the Supreme Court to quash the government’s inadequate climate policy.

The 2015 Climate Action and Low Carbon Development Act, which established Ireland’s commitment to transitioning to a low-carbon and environmentally sustainable economy by 2050, required the government to publish a National Mitigation Plan specifying the measures to be taken to achieve this objective. The government’s Plan, published in 2017, was wholly inadequate. It outlined vague measures, deferred action in the hope that “future technologies” would come to the rescue and, crucially, envisaged increased greenhouse gas emissions.Footnote ² Ireland’s Climate Change Advisory Council assessed that the measures were “unlikely to deliver” the necessary transition.Footnote ³ Friends of the Irish Environment (FIE), a prominent civil society group, sought judicial review of the Plan, arguing that it was ultra vires and violated fundamental rights enshrined in the Constitution and the European Convention on Human Rights (ECHR), including the rights to life, bodily integrity, and a healthy environment.

Though the High Court had found the Plan to be intra vires and refused to engage with the fundamental rights arguments on account of the “considerable discretion” that the government enjoyed in this “policy” area, the Supreme Court reversed this decision less than a year later.Footnote ⁴ Noting that the Act required the Plan to “specify” measures to achieve the low-carbon transition, the court found that the Plan did not give a sufficiently “realistic level of detail.” The Plan was found to be ultra vires and was quashed.Footnote ⁵

But from a rights perspective, the judgment was actually a major setback. FIE had hoped for an authoritative judicial declaration that the Irish government had a duty, arising from international human rights and constitutional rights law, to do more to reduce greenhouse gas emissions. The litigants had taken some inspiration from Urgenda and indeed invoked the Dutch judgment repeatedly in their submissions. But the Supreme Court’s response on this score was deeply disappointing. The decision was based on a narrow question of statutory interpretation, and the human rights arguments were not merely dismissed but belittled. FIE was not granted standing to pursue any rights-based claims, and the court made unhelpful and gratuitous additional comments denying that a right to a healthy environment could be derived from the Constitution.Footnote ⁶

This was a climate case that failed to obtain a favorable ruling on human rights claims. But despite and because of these disappointments, FIE nonetheless holds valuable lessons for litigants. The Supreme Court’s approaches to the issues of standing, deference, regional human rights jurisprudence, the right to the environment, and the choice between multiple grounds for claims may offer important insights into how to approach such issues in the future. This case highlights vital questions which litigants need to confront.

16.1 Deference and Human Rights Arguments

FIE was the first and highest-profile case concerning the general adequacy of the Irish government’s climate action to go through the courts. Against the background of Irish courts’ conservatism, the long-held perception that climate change is “public policy more than [a] legal issue,” and the High Court judge’s characterization of the “significant policy content” of FIE’s case, it was unclear how the Supreme Court would respond to the questions of justiciability and discretion.Footnote ⁷ The government had successfully convinced the High Court that the Plan’s creation was an “exercise of discretion” in “the pursuit of policy,” and the judge agreed that it was “not part of the function of the court to second-guess the opinion of Government on such issues.”Footnote ⁸ The government argued again in the Supreme Court that the Plan “simply represents policy” and was therefore not amenable to judicial review and that the court would assume a policy-making role if it accepted FIE’s arguments.Footnote ⁹

Counsel for FIE accordingly took a cautious approach, emphasizing that the government has wide discretion as to how emissions are to be reduced. They took care to distinguish their demands from those in Urgenda: they were not asking the court to prescribe the content of a new Plan or to order specific emission reductions. And, vitally, they insisted that they were asking a legal question.

The court took seriously the government’s claims that climate litigation invites judicial activism. It expressed hesitance in relation to FIE’s rights arguments and the separation of powers, noting, “there clearly is a risk of the distinction between rights based litigation, on the one hand, and political or policy issues, on the other becoming blurred in cases such as this.”Footnote ¹⁰ But it nonetheless rejected the government’s non-justiciability arguments.

This confirmed a “legal transition” away from an understanding of climate change as being solely a matter for politics, with the Irish Supreme Court joining many other courts around the world in refusing to treat climate action as a “no-go area” in which courts have no role to play.Footnote ¹¹ That the case concerned the complex policy issue of climate mitigation did not change the fact that “there is legislation.” The Act stipulated that the Plan needed to fulfil certain requirements, and the question of whether the Plan complied with those requirements was clearly “a matter of law.” The court pointed specifically to the statute’s provision that the Plan must “specify” how Ireland’s low-carbon transition would be achieved, stating that this specificity requirement was “clearly justiciable.”Footnote ¹²

But, in focusing particularly on this provision, the court effectively took a shortcut. It answered the justiciability question with reference to one precise statutory requirement; it then considered the vires issue first and, upon finding the Plan to be ultra vires on the basis of that provision because it did not “specify” measures in sufficient detail, stated that “any consideration of the further rights based issues which arise on this appeal would be purely theoretical.”Footnote ¹³ Many of the difficult questions about fundamental rights and climate change, which had been argued on appeal, were thus sidestepped. FIE had made convincing arguments about causation, noting the real and genuine threat to life and that the Plan increased the risk of such harm. This seemed successful during the hearing: when the government’s counsel argued that FIE could not prove that implementing the Plan would cause rights violations, the justices’ questions highlighted the government’s mischaracterization and simplification of the issue. There was fruitful discussion during the hearing about the relative significance of Ireland’s emissions globally; and the justices engaged with temporal complexities in questioning at what point damage would have to occur before rights could be deemed violated. But these questions went unanswered in the judgment.

Sidestepping FIE’s rights arguments in this way also served to sanitize the issue. The case started from the position that both parties accepted the scientific facts that deaths and other risks would arise from increased emissions, and it ended with a judgment centering around the meaning of the word “specify.” What the Irish government did wrong, according to the court, was to create a Plan that was not clear enough. It was condemned for failing to enable a reader to understand how the transition objective would be achieved but not for its shameless decision to publish a Plan under which emissions would increase.

The FIE case therefore raises vital strategic questions. In more conservative jurisdictions, litigants invoking rights will often be well advised to opt for a “safer” approach by bringing non-rights claims, particularly questions of statutory interpretation, alongside rights claims. Grounding claims in legislation as well as rights provisions will increase the likelihood of more traditionally deferential courts finding inadequate climate policies to be unlawful. Indeed, though there has been a proliferation of rights-based claims in climate cases, rights arguments are generally used to “prop up” other claims; very few cases are yet argued solely on a rights basis.Footnote ¹⁴

This was visible here: FIE won, but on the basis of a narrow statutory provision, not its rights-based claims. Commenting on the boundaries of claimed rights, Chief Justice Clarke noted that “in an appropriate case, it may well be that constitutional rights might play a role in environmental proceedings” and might “give rise to specific obligations on the part of the State.” But these questions were “to be addressed in cases where they truly arise.”Footnote ¹⁵ The court’s approach was to start with the question with which it felt more comfortable, decide upon that basis, and deem the rest “purely theoretical.” The “trickier” rights arguments could be circumvented in favor of “safer” grounds. It is easier to insist that the court is not infringing on the executive nor breaching the separation of powers when the question concerning climate policy is one of technical statutory interpretation. This was also seen in the case regarding the Heathrow airport expansion in the United Kingdom, which initially raised rights-based claims against the government’s policy to permit the building of a third runway but was ultimately decided on the basis of an interpretation of the Planning Act and the Strategic Environmental Assessment Directive.Footnote ¹⁶

All of this may suggest that where litigants seek authoritative statements of states’ legal duties to reduce greenhouse gas emissions based on fundamental rights provisions, they may need to take a somewhat riskier approach. Bringing a variety of claims based on rights and on statutes may increase the likelihood of findings of justiciability and of illegality. But litigants may need to adopt bolder strategies in bringing cases that only make rights-based claims, in order to prevent courts from sidestepping the rights claims by choosing to decide on the basis of the “easier” grounds.

The FIE case holds another important lesson for litigants in this area: it was a glaring reminder of the need for rights-based climate litigation strategies to take a multilevel approach. At first instance, Justice MacGrath had declined to rule on the ECHR claims because the Strasbourg Court had not yet decided a case concerning climate change. As Irish courts were to follow rather than anticipate the ECtHR, it was “not for the domestic court to declare rights under the Convention.”Footnote ¹⁷

Litigants are to be commended for their careful invocation of Strasbourg case law on environmental disasters or pollution within domestic cases challenging climate mitigation policies. But this task is fraught with difficulties. First, the court’s environmental jurisprudence has quite consistently afforded a wide margin of appreciation to states.Footnote ¹⁸ Second, states’ failures to take steps to prevent mudslides, or to evacuate an area before releasing water from a reservoir, represent fact patterns quite removed from the polycentricity of climate change.Footnote ¹⁹ The principles and conceptions of risk and obligation arising from these cases are promising, but their facts may be unhelpful. As the Irish Supreme Court noted, these cases might be understood as “confined to situations where the pollution concerned ‘directly and seriously’ creates an imminent and immediate risk.”Footnote ²⁰ Indeed, a Swedish court found that Articles 2 and 8 ECHR were not infringed by the selling of coal power plants because the damage had not yet occurred: the mere “risk of damage” was insufficient.Footnote ²¹ And the Swiss Federal Court dismissed Article 2 and 8 claims in relation to inadequate climate policy by finding no “present” or immediate danger to the plaintiffs; the consequences of climate change would occur only in the future.Footnote ²² The Irish Supreme Court justices in FIE also questioned the necessary level of proximity between the effects and the Plan, as well as the required degree of imminence of the risk.

The Dutch Supreme Court is, therefore, clearly an outlier in holding that the absence of a clear answer from the ECtHR did not prevent it from providing an opinion on the scope of the state’s obligations. The Irish High Court’s refusal to preempt Strasbourg is representative of a crucial issue: there is a pressing need for the ECtHR to provide guidance to state parties as to the applicability of Convention rights to climate mitigation measures. Regional human rights courts have been at the forefront of developing environmental rights; they must, soon, take up the challenge of climate change.Footnote ²³ Litigants seeking authoritative statements from domestic courts on the human rights implications of weak climate policy, such as FIE, will benefit hugely from legitimation from the ECtHR.

Litigation in domestic courts must therefore be complemented by efforts within regional and international monitoring mechanisms and courts. These bodies can help to clarify and reinforce the scope of states’ rights obligations. Cross-references among human rights bodies – such as the Human Rights Committee’s reference in its General Comment on the right to life to the IACtHR’s statement that there is an “irrefutable relationship” between the environment and the ability to effectively enjoy human rights – could help bolster states’ duties to reduce emissions.Footnote ²⁴ Legal strategies that take seriously the need to address regional and international human rights mechanisms can thereby help create an “increasingly coherent … body of law” in this area and assist domestic climate litigation.Footnote ²⁵

There is also a need for caution in invoking rights jurisprudence from outside the relevant jurisdiction. Counsel for FIE relied quite extensively on Urgenda in making its Convention claims, effectively urging the Irish courts to follow the Dutch courts’ approach. But this may, with hindsight, have served to “scare off” this more traditional court, so wary of judicial activism. FIE had worked to distinguish its case from Urgenda in relation to the relief sought, in light of likely skepticism from the Irish courts as to the propriety of courts ordering the government to reduce emissions by a particular percentage point. But its reliance on Urgenda’s reasoning in relation to its rights claims may have left these claims vulnerable to the government’s attack that these rights arguments could not apply within the Irish constitutional order. Irish judges display a preference for looking predominantly to common law systems, and the difference between Irish dualism and Dutch monism also played a role during the hearing. A better approach may have been not to invoke Urgenda, instead focusing on convincing the Irish courts on their own terms. Litigants must be prepared to make forceful and convincing arguments as to why courts must not ignore human rights arguments and the urgency of such consideration in the climate change context. Now is the time to be frank: in shying away from grappling with such issues, courts are failing to engage with the most pressing rights issue of the century.

16.2 The Right to a Healthy Environment and Developing the Law in Climate Change Litigation

As part of its challenge to the Plan on human rights grounds, FIE asserted that the right to a healthy environment should be recognized as a derived right under the Irish constitution. Although the right had previously been recognized in dicta of the High Court,Footnote ²⁶ this case presented the first opportunity for the Supreme Court to consider this issue. The Court ultimately concluded that the right did not warrant recognition, primarily on the basis that its content and scope were “impermissibly vague.”Footnote ²⁷

This finding may have resulted from the way in which the case was argued. When asked to explain how the right to a healthy environment affected the case, counsel for FIE conceded that it would not add anything beyond the protection offered by the rights to life and bodily integrity.Footnote ²⁸ Similarly, when pressed regarding the precise content of the right, counsel did not rely on the extensive body of jurisprudence from jurisdictions that had considered this issue, instead referring to the relationship between human dignity and a healthy environment and suggesting that the right covers much of the same ground as the rights to life and bodily integrity. While this was likely a strategic decision informed by a desire to rely on accepted rights in a historically conservative court, these submissions enabled the court to easily sidestep recognizing the right. In outlining its reasons for refusing to do so, the court observed that “the beginning and end of this argument stems from the acceptance by counsel for FIE that a right to a healthy environment, should it exist, would not add to the analysis in these proceedings, for it would not extend the rights relied on beyond the right to life and the right to bodily integrity whose existence is not doubted.”Footnote ²⁹

Climate change litigants seeking recognition of the right to a healthy environment must therefore be cognizant of the need to articulate what the right entails and the specific impact that it will have in the case before the court. Jurisprudence of other courts concerning the right will assist in this task, as will the analytical reports regarding states’ human rights obligations in relation to the environment developed by the UN Special Rapporteur on human rights and the environment.Footnote ³⁰

More broadly, the court’s decision regarding the right to a healthy environment raises the issue of legal innovation in climate change litigation. As Fisher and her co-authors have noted, climate change is a unique, polycentric problem that “requires a ‘break’ in the continuity of existing legal practices and doctrinal ‘business as usual,’” particularly for adjudicative processes.Footnote ³¹ In light of this challenge, litigants should not be reluctant to urge courts to innovate and develop the law in response to the threat posed by climate change. Where they do so, they should be ready to acknowledge that they are asking the bench to break new ground rather than work within the confines of existing doctrine. Such an approach will likely be met with strong resistance from judges and opposing parties, each of whom will raise arguments regarding the need for legal certainty and stability that are invariably used to justify adherence to precedent or existing practice.

But these arguments need to be responded to by cogent reasoning by way of rebuttal. To begin with, arguments in favor of legal certainty and stability are inherently grounded in a desire to uphold the rule of law. But the protection of fundamental human rights, the ability to obtain a remedy when harm is suffered, and the need for states to comply with international obligations are arguably equally important.Footnote ³² When courts refuse to adapt legal doctrine in response to climate change, the risk of human rights violations increases, those who have suffered harm are left without access to a remedy, and states are permitted to disregard their climate commitments. Taken together, these outcomes seriously undermine the rule of law rather than maintain it, and litigants should not hesitate to draw the attention of judges to the practical consequences of their decisions. Moreover, the role of precedent in fostering legal certainty is often overstated. Both parties to any litigation will present the court with reams of authorities that they claim support their position and will often argue extensively over the correct interpretation of the same precedent, such that the final outcome can be impossible to predict. Litigants should therefore be prepared to argue that the proposition that legal certainty is guaranteed by respect for precedent is only a part of the overall picture.Footnote ³³

It is also important to recall that respect for precedent is not intended to be absolute. Although the precise test for overruling precedent will vary and can change over time,Footnote ³⁴ courts in many jurisdictions are reluctant to follow existing precedent if there has been a change in underlying social conditions.Footnote ³⁵ Given that an adequate response to the climate crisis will require societal transformation on a historically unprecedented scale,Footnote ³⁶ climate change is arguably a paradigmatic example of an underlying social condition that justifies departure from precedent. In making this argument, litigants can point to cases where courts have developed legal doctrine in response to changing attitudes toward nonmarital relationships and homosexualityFootnote ³⁷ or formulated a new test for causation in asbestos litigation.Footnote ³⁸ Historical examples of instances where courts played an active role in protecting the environment may assist in persuading courts to take a more active role.Footnote ³⁹ Because most human rights–based cases in domestic legal systems will arise in a constitutional context, arguments that suggest that courts should give less weight to constitutional precedents may also be effective.Footnote ⁴⁰

The Irish court’s refusal to recognize the right to a healthy environment is perhaps the most retrogressive aspect of its decision, and it is a clear example of a court failing to take the opportunity to develop legal doctrine in response to climate change. The judgment provides a timely reminder of the need for litigants to make arguments that outline why doing so is both necessary and especially appropriate in climate change litigation.

16.3 Standing in Climate Change Litigation

Contrary to the approach adopted in the High Court, the Supreme Court held that FIE did not enjoy standing to bring rights-based claims, in essence because it is a corporate entity that does not itself enjoy the protection of the rights it sought to assert.Footnote ⁴¹

As a preliminary matter, the court’s holding highlights the importance of choosing prospective plaintiffs carefully in rights-based climate litigation. Although some prominent environmental NGOs have been able to commence such cases,Footnote ⁴² others have suffered a fate similar to FIE.Footnote ⁴³ Environmental organizations contemplating climate litigation should therefore give careful consideration to naming individuals as plaintiffs, particularly if there is any risk that courts will construe the applicable standing rules unfavorably.

Even if an appropriate individual can be found, there is still a risk that standing will be an issue for those seeking to initiate rights-based litigation in common law jurisdictions. This is because public law standing rules tend to require plaintiffs to show that they have suffered a particularized, concrete injury in order to challenge the relevant law or government action. Given those most likely to be affected by climate change have often not yet suffered any particular harm or loss, these rules can prove to be an insurmountable barrier. Litigants might therefore consider arguing in favor of a more progressive approach to standing in climate cases. Several specific arguments can be made.

First, a more liberal standing regime in climate cases will serve to uphold the rule of law by ensuring that those most affected are able to challenge inadequate government action that is almost certain to result in a violation of their rights in the future.Footnote ⁴⁴ In the absence of such a regime, there is a high likelihood that such groups will be left without a remedy until it is too late to be meaningful. As Limon argues, legal disagreements regarding links between global warming and irreparable harm are unlikely to convince “the Inuit of North America who every year see their lands eroding, their houses subsiding, their food sources disappearing.”Footnote ⁴⁵ Lord Diplock’s famous observation that “it would be a grave lacuna in our system of public law if a pressure group … or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped”Footnote ⁴⁶ would likely carry particular weight with a court in this context.

Second, traditional approaches to standing are particularly harmful to those most likely to be affected by climate change, who often lack the time, resources, or expertise necessary to commence litigation.Footnote ⁴⁷ A liberal standing regime would enable NGOs to litigate on behalf of those who are not well placed to do so themselves. These organizations will be better equipped to present relevant arguments to a court and will have more resources and greater access to experts who can provide the necessary expert evidence.

Third, many jurisdictions have already moved toward open standing regimes, particularly in relation to environmental cases. In Canada, rules permit public interest standing,Footnote ⁴⁸ while in the United Kingdom, courts are assumed to have a particular responsibility to develop standing principles that meet the needs of modern society.Footnote ⁴⁹ The Philippines Supreme Court has authorized citizen suits brought by any citizen on behalf of others, and similar approaches have been adopted in Latin America, where both constitutional and statutory provisions allow courts to expand standing in environmental cases to those who cannot prove a direct injury.Footnote ⁵⁰

Fourth, open standing may improve government decision-making in relation to climate change.Footnote ⁵¹ If members of the legislature and the executive know that courts will scrutinize their emissions-related decisions, they may be motivated to take more effective action.

Each of these arguments is likely to be met with the familiar response that an open standing regime would be contrary to the separation of powers. But courts can use a number of legal mechanisms to address these concerns, including the political question doctrine,Footnote ⁵² adverse costs orders, and their inherent power to dismiss claims that are vexatious or an abuse of process.Footnote ⁵³ They can also develop criteria for assessing the bona fides of NGOs taking advantage of open standing rules, including by evaluating their qualifications and experience and requiring them to file evidence that demonstrates that they have a mandate from those they claim to represent.Footnote ⁵⁴ Moreover, open standing may actually enhance rather than diminish the democratic legitimacy of judicial oversight of legislative and executive action in relation to climate change. Democratic governance is predicated on the notion that people have the right to participate in public life and the way in which society is governed.Footnote ⁵⁵ Granting standing in climate cases can facilitate this process by allowing citizens to participate in important decisions regarding an existential threat to society, thereby increasing the range of inputs into democratic decision-making processes concerning this issue. This is particularly pertinent in the context of modern democracies, as traditional assumptions that legislative bodies are truly representative are undermined by the pervasive influence of lobbyists and the level of dysfunction currently exhibited by many legislatures.Footnote ⁵⁶

The oft-raised argument that standing rules prevent courts from considering hypothetical legal arguments is also less convincing in the context of climate change. Courts can require parties to file evidence that provides factual underpinnings for their legal arguments and, due to the rise of class action regimes in many jurisdictions, can draw on a growing body of jurisprudence that analyzes how to make use of common evidence to prove harm to a wider group of people.

Strict standing rules are, in at least some respects, a relic of an earlier era. Climate change challenges the foundations on which these rules are based and necessitates a new and more responsive approach from courts. Litigants in future cases should not hesitate to make arguments that outline why such an approach is appropriate.

16.4 Conclusion

FIE is yet another example of a failed attempt to have courts declare inadequate climate strategies a violation of human rights in the way that the Urgenda litigants achieved. However, this Irish judgment yields some important lessons. FIE’s success in having the Plan quashed is undoubtedly a victory to be celebrated. But the multiple ways in which the Supreme Court’s judgment fails to engage, or takes steps backward, with respect to the human rights arguments leave much to be desired. This disappointing result raises questions as to whether litigants should adopt a “safer” approach of pursuing many grounds for their claims; it provides lessons as to how litigants might approach issues such as standing and the right to a healthy environment; it highlights the urgency of making strategic use of regional and international mechanisms in addition to domestic courts for climate cases; and it lays bare the need for litigants to be up front about the necessity of innovation in legal reasoning when it comes to climate change.

Fossil fuel suppliersFootnote ² have consistently escaped accountability for climate change by leaning on domestic policies void of supply-side measures to mitigate climate pollution. They also hide behind a wall of impunity and pose legal defenses that presuppose a fossil fuel market driven by demand only. These actions defy basic economic principles and climate science and contravene customary international law, human rights obligations, and the climate change legal regime.

Despite the scientific consensus that climate change is the existential crisis of our time,Footnote ³ governments continue to push for the expansion of fossil fuel exploration, extraction, and production. These measures not only fail to address the crisis but also impede meaningful action to curb greenhouse gas emissions and safeguard the human rights at stake, including the right to life, the right to health, the right to a healthy environment, and intergenerational rights.

As the youth rise in protestFootnote ⁴ and activismFootnote ⁵ to take back their future, courts around the world are being approached to help fill the impunity gap and close the convenient loopholes created by political compromise and corporate lobbies. Despite significant setbacks in court, some rulings are contributing to real progress toward achieving this goal. The latest of such cases is from the Supreme Court in Norway. Although it was a loss for the plaintiffs, the decision is in some respects a step in the right direction and a warning to the fossil fuel industry. This is because, for the first time, the Supreme Court held that greenhouse gas emissions from Norwegian fossil fuel products that are combusted outside its borders (“exported emissions”) must be taken into account when analyzing the climate impacts of fossil fuel extraction and production.

This chapter discusses the efforts to close the supply-side accountability gap using as an example the Norwegian climate case (People v. Arctic Oil). First, it provides an overview of the case for supplier accountability for exported emissions, referring to previous work by analysts and legal scholars and to jurisprudence from around the world. Then, it examines the push for supply-side accountability in the context of the People v. Arctic Oil case and other cases. Finally, the chapter concludes with an analysis of principles that can be applied in legal battlegrounds and beyond.

17.1 The Case for Supply-Side Accountability

This section examines the supply-side accountability gap and why it matters. Climate science has confirmed that anthropogenic greenhouse gas emissions cause climate change. The Intergovernmental Panel on Climate Change (IPCC) has found that “human activities are estimated to have caused approximately 1.0°C of global warming above pre -industrial levels, with a likely range of 0.8°C to 1.2°C. Global warming is likely to reach 1.5°C between 2030 and 2052 if it continues to increase at current rate. (high confidence).”Footnote ⁶ Already, at the current level of warming, climate-fueled extreme weather events are negatively affecting human health, taking human lives, and causing serious and irreversible harm to the environment.

Because of the seriousness of the risks associated with climate change and the harms that are already occurring, urgent action is needed to cut carbon emissions. However, current actions (which are “overwhelmingly” focused on addressing fossil fuel demand)Footnote ⁷ are not enough. The UNEP Emissions Gap Report has found year after year that current actions are insufficient as emissions have consistently risen – “even if all unconditional Nationally Determined Contributions (NDCs) under the Paris Agreement are implemented, we are still on course for a 3.2°C temperature rise.”Footnote ⁸

More fossil fuels have already been found than the world can afford to burn.Footnote ⁹ “Carbon emissions from oil and gas in operating fields and mines globally would push the world beyond 1.5C of warming and make it impossible to meet our global obligations under the Paris Agreement … even if global coal use were phased out overnight, and cement emissions were drastically reduced.”Footnote ¹⁰ Fossil fuel supplying governments continue to expand the exploration, extraction, and production of fossil fuels despite the fact that these actions do not comply with the goals of the Paris Agreement.Footnote ¹¹

This difference between planned fossil fuel production and the climate goals is called the production gap.Footnote ¹² According to the UN, “in aggregate, countries’ planned fossil fuel production by 2030 will lead to emissions … that [are] 53% more than would be consistent with a 2C pathway and … 120% more than would be consistent with a 1.5C pathway. This gap widens significantly by 2040.”Footnote ¹³ Analysts expect that, in 2040, “production levels [will] reach 110% and 210% higher than those consistent with the 2C and 1.5C pathways.”Footnote ¹⁴ This global production gap is even larger than the already significant global emissions gap because curbing fossil fuel production continues to go unaddressed in both the legislature and the judiciary.Footnote ¹⁵ This is the supply-side accountability gap.

In this lacuna in accountability, every major international oil company has approved “new oil and/or gas projects that are not Paris Agreement compliant.”Footnote ¹⁶ Energy analysts at the UN “predict that investment in fossil fuel exploration, extraction and delivery infrastructure could remain at about USD 1 trillion annually through 2040.”Footnote ¹⁷ As a result of increased investment, “global annual oil and gas production is on a trajectory to rise 7% between 2019 and 2024.”Footnote ¹⁸

It is now clear that the demand-side focus of policymakers is not generating the reductions in greenhouse gas emissions needed to avoid the worst impacts of climate change, and the lack of supply-side accountability is only making the situation more dire. If industry expansion were stopped, oil and gas production would fall by 13 percent in five years and 30 percent in ten years.Footnote ¹⁹

As more money and resources are poured into fossil fuel infrastructure, fossil fuel prices decrease, consumers become “hooked,” different parts of society become “deeply entangled” in the fossil fuel economy and, consequently, emission reductions are harder to achieve.Footnote ²⁰ This lock-in effect is evident when government “plan[s] and projections for fossil fuel production do not align with climate ambitions.”Footnote ²¹ Supply-side policies “could allow for greater emission reductions at the same (or lower) cost than demand-side policies alone. They could help reduce carbon lock-in effects, making it easier for lower-carbon alternatives to compete with fossil fuels.”Footnote ²²

In the case of Norway, 95 percent of the emissions generated by Norwegian fossil fuels occur abroad.Footnote ²³ These emissions are what are called “exported emissions” or “extraction-based emissions,” and they are not taken into account when discussing Norwegian “climate leadership.” It is time to address the drill-rig-sized elephant in the room.

17.2 The Norwegian Paradox

The global carbon emissions from combusting fossil fuels extracted in Norway are about ten times higher than the total carbon emissions generated within Norway.Footnote ²⁴ Norway is the world’s seventh largest exporter of greenhouse gas emissions.Footnote ²⁵ In 2016, then-Norwegian Climate and Energy Minister Vidar Helgesen said that “as long as the world needs oil and gas, we will provide it,”Footnote ²⁶ a position reiterated throughout the oral arguments of the state in the People v. Arctic Oil case discussed below.

At the same time that Norway proclaims its credentials internationally as a leader in the fight against climate change,Footnote ²⁷ analysis by the UN Special Rapporteur for human rights and the environment and conclusions by treaty bodies CESCR and CEDAW have found that further arctic oil exploration in Norway is not consistent with its human rights obligations.Footnote ²⁸

As the Norwegian government embarks on new fossil fuel exploration at a time in which governments have found more oil than they can afford to consume if they are to achieve the Paris temperature targets, the question arises: aren’t major exporters of greenhouse gas emissions accountable? With the support of a large coalition of civil society members, co-plaintiffs Nature and Youth and Greenpeace Nordic (together with interveners Grandparents Climate Campaign and Friends of the Earth Norway) sued the Norwegian government, taking their case all the way to the Supreme Court and making progress toward closing the supply-side accountability gap.

17.3 The People v. Arctic Oil Case

The regulation of petroleum activities in Norway is divided into three stages: (1) the opening of a field, (2) the exploration phase, and (3) the production phase.Footnote ²⁹ In October 2016, the People v. Arctic Oil case was filed against the Norwegian government for granting new oil drilling licenses (exploration phase) for the first time in twenty years in a newly opened area in the Arctic.Footnote ³⁰ The plaintiffs argued that this drilling violates the right to a healthy environment enshrined in Article 112 of the Norwegian Constitution and contravenes Norway’s responsibilities under international law. The plaintiffs claimed that the licensing decision facilitates potentially significant and long-term increases in the combustion of fossil fuels and emission of greenhouse gases, threatening to make a significant contribution to climate change. As the IPCC Special Report reaffirms, global temperature increases of over 1.5 degrees Celsius will have catastrophic impacts on local and global ecosystems through, inter alia, rising sea levels, extreme weather events, and biodiversity loss.Footnote ³¹

17.4 Other Jurisdictions Closing the Supply-Side Accountability Gap

Several courts around the world have found that the climate effects of a fossil fuel project (in terms of greenhouse gas emissions) should be taken into account in the environmental impact assessment stage, which would, as a result, invalidate some projects.Footnote ⁵⁸ Other jurisdictions have also included exported emissions in their analyses. This could mean that the judiciary can play a more active role in bridging this accountability gap. In the 2006 case Gray v. Minister for Planning, an Australian Federal Court rejected the environmental impact assessment for a coal mine slated for development in Anvil Hill, which would have produced coal for coal-fired power stations in Australia and overseas.Footnote ⁵⁹ It held that the environmental impact assessment for the coal mine failed to take into account the potential greenhouse gas emissions that stemmed from the burning of coal by third parties outside of the control of the coal mine proponents. The court found that there was a sufficient causal link between the coal produced, the combustion of coal abroad, the release of greenhouse gases, and the increase in global warming.

This court also found that the failure to consider these emissions constitutes a breach of the legal requirement to take into account the principle of intergenerational equity.Footnote ⁶⁰

In 2019, in the case Gloucester Resources Limited v. Minister for Planning, the court specifically held that combustion emissions from exported resources must be included in assessments made under Australian law.Footnote ⁶¹ “In short, an open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time …. Wrong time because the greenhouse gas emissions (GHG) of the coal mine and its product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions.”Footnote ⁶²

17.5 Two Principles to Carry beyond the Norwegian Supreme Court

As communities, campaigners, activists, and lawyers gear up for the next big fight to close the supply-side accountability gap, there are two principles to take beyond the Norwegian Supreme Court.

17.6 Conclusion

Suppliers who, through their push to expand the fossil fuel industry, delay meaningful action on climate change cannot perpetually hide behind the apparent loopholes in climate accountability. Protecting the rights at stake from the effects of climate change and fulfilling international law obligations means taking exported emissions into account as early as possible and, also taking supply-side measures such as curbing the expansion of fossil fuel production. Failure to fulfill these obligations is not only unlawful but also a bet against ourselves and our children’s future.

It is the urgent legal responsibility “and moral obligation of wealthy fossil fuel producers to lead in putting an end to fossil fuel development and to manage the phase-out of existing production.”Footnote ⁸⁹ People all over the world are stepping up and have filed over 600 cases to force action on the climate crisis. Domestic courts have and will continue to close the accountability gap in these cases in the future. For now, the People v. Arctic Oil Supreme Court judgment sends a firm warning to the industry – you can look but you cannot touch.

18.1 Introduction

The 2017 wildfire season in Portugal will forever be etched in the memories of Sofia and André Oliveira; Cláudia, Martim, and Mariana Agostinho; and Catarina Mota. That year, over one hundred people perished as a result of the most devastating outbreak of forest fires in Portugal’s history. Many were killed only miles from Cláudia, Martim, Mariana, and Catarina’s homes in Portugal’s Leiria district. For a number of years, these children and young adults have been experiencing ever-intensifying heat extremes that interfere with their ability to exercise, sleep, and spend time outdoors. But, as with so many among their generation, it is what their futures hold that scares them the most. And sadly, they have every reason to be extremely worried. If global warming remains on its current trajectory, Portugal could face deadly heatwaves, bringing temperatures of over forty degrees Celsius, which could endure for over a month, and the number of days on which there is an extreme risk of wildfire could quadruple.Footnote ¹

It is for this reason that on 3 September 2020, these six Portuguese children and young adults (‘youth-applicants’) filed an application with the European Court of Human Rights (‘ECtHR’ or ‘Court’) against thirty-three European states in which they argue that these states are breaching their obligations under the European Convention on Human Rights (‘ECHR’) by failing to adopt adequate climate change mitigation measures.Footnote ² This chapter provides an overview of the basis on which the youth-applicants argue that the respondent states are responsible under the ECHR for the harm and risk of harm to which they are exposed as a result of climate change. For the purpose of this analysis, it will be assumed, as the youth-applicants contend, that this harm/risk falls within the scope of harm/risk covered by Article 2 (the right to life), Article 3 (the prohibition on inhuman or degrading treatment), and Article 8 (the right to respect for private and family life). This chapter begins with a brief overview of the key challenge – which stems from the absence of an agreed approach to how the burden of mitigating climate change ought to be shared between states – that arises in climate change litigation. Next, it outlines how principles of shared state responsibility address this difficulty and, further, how these principles are consistent with existing principles of ECHR law. A summary of the approach taken by the Dutch Supreme Court in the Urgenda case is then provided by way of comparison, followed by some brief concluding remarks.

18.2 The Challenge That Arises in Climate Change Litigation

It is well established that the ECHR imposes on states a duty ‘to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life’.Footnote ³ The ECtHR has further held that ‘in the context of dangerous activities the scope of the positive obligations under Article 2 of the Convention largely overlap with those under Article 8’ such that ‘the principles developed in the Court’s case-law relating to planning and environmental matters affecting private life and home may also be relied on for the protection of the right to life’.Footnote ⁴ Among the principles that apply in this context is that when a state ‘authorises [dangerous activities], it must ensure through a system of rules and sufficient control that the risk is reduced to a reasonable minimum’.Footnote ⁵ When it comes to defining this ‘reasonable minimum’ in cases raising issues of an environmental nature, the ECtHR has regard to applicable international standards governing, for example, noise pollutionFootnote ⁶ or exposure to electromagnetic fields.Footnote ⁷

It seems fair to suggest, therefore, that if, hypothetically, only one European state was responsible for the greenhouse gas (‘GHG’) emissions that cause climate change, a case against that state would be relatively straightforward. The international standard would, of course, be provided by the Paris Agreement, which makes clear the need ‘to limit the [global] temperature increase to 1.5°C’ (‘1.5°C target’).Footnote ⁸ The only issue of any real complexity that would arise in such a hypothetical case is the extent to which the single emitting state could rely on the possibility that negative emissions technologies might emerge at some point in future, thereby enabling it, as it would argue, to delay reducing its emissions. The ECtHR has, however, already held that states must apply a precautionary approach in relation to ‘new technology … whose consequences for the environment [are] unknown’.Footnote ⁹ And in any event, authoritative UN reports make clear the total emissions reductions that are required, year-on-year, to keep global warming to the 1.5°C target.Footnote ¹⁰

Similarly, if it were the case that any GHG emissions would cause climate change to exceed the 1.5°C target, a case against any state that emits GHG would be equally straightforward. As Mayer notes, ‘the task of lawyers would be easier if the global mitigation objective was an immediate and absolute cessation of all GHG emissions, as the implication of this objective would be clear: each State would be bound to stop [these] emissions’.Footnote ¹¹

The principal challenge that arises with climate change litigation therefore stems from the fact that, first, multiple states contribute to the problem; second, it is not the case that any contribution to global emissions causes global warming to exceed a permissible level (in ECHR terms); third, by virtue of the ‘bottom-up approach’ of the Paris Agreement – and the associated ambiguity as to the meaning of ‘equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances’ (‘CBDR’) – the specific amount by which any given state must reduce its emissions in order to achieve the collective goal of that agreement is imprecisely defined;Footnote ¹² and fourth, owing to the philosophical and political nature of the considerations underlying any choice as to how to measure a given state’s ‘fair share’ of the required global mitigation effort, a court is unlikely to select the ‘correct’ approach to global burden-sharing.Footnote ¹³ That is, a court would be unlikely to endorse, for example, historical responsibility over economic capability as the single proper approach to measuring a state’s ‘fair share’.

18.3 Shared Responsibility and Climate Change

How, then, do the youth-applicants propose to address this challenge in the case before the ECtHR? In answering this question, it is appropriate to consider first the recently published Guiding Principles on Shared Responsibility (‘Guiding Principles’).Footnote ¹⁴ According to Principle 2 of the Guiding Principles, ‘the commission by multiple international persons of one or more internationally wrongful acts that contribute to an indivisible injury entails shared responsibility’.Footnote ¹⁵ Thus, ‘the defining feature of shared responsibility is that multiple international persons, by committing one or more internationally wrongful acts, contribute to an indivisible injury’.Footnote ¹⁶ It is Principle 4 of the Guiding Principles that is relevant in the context of the ECHR obligation to prevent harm from climate change. It provides:

As the commentary to that Principle notes, ‘in order to establish shared responsibility for the indivisible injury of climate change, violations of applicable international obligations incumbent on each of the responsible international persons need to be established, for instance under international environmental law or international human rights law’.Footnote ¹⁸

Taking the prevention of this ‘indivisible injury’ as being the chief objective of the ECHR obligation to mitigate climate change, it follows logically that this obligation, as it applies to each state individually, must be interpreted so as to ensure to the extent possible that its collective implementation is consistent with the prevention of such injury. And it is here that the widely accepted principle of law applicable to causal uncertainty arising from the involvement of multiple potential contributors to a particular harm becomes relevant.Footnote ¹⁹ This principle may be illustrated by reference to the leading English authority in this area, Fairchild v. Glenhaven Funeral Services.Footnote ²⁰ In that case, the plaintiffs were unable to establish which of several periods of exposure to asbestos by their multiple negligent employers had caused their resulting injuries. This was because the inhalation of as little as one single asbestos fibre could have given rise to those injuries, and it was not scientifically possible to establish when exactly this had occurred. The House of Lords, after reviewing the principles that apply to similar situations in various jurisdictions,Footnote ²¹ concluded that it was appropriate to apply a relaxed approach to causation in such a situation, such that the defendant employers were presumed to have caused the injuries in question. This approach was necessary to give effect to ‘the policy of common law and statute to protect employers against the risk of contracting asbestos-related diseases’.Footnote ²²

At the root, the ambiguity at issue in a situation such as that which arose in Fairchild is materially equivalent to the ambiguity as to what constitutes the ‘reasonable minimum’ amount by which any one state ought to reduce its emissions. First, the latter involves ambiguity as to the extent, if any, of the unlawful contribution to ‘indivisible injury’ by multiple potential contributors to that injury. If any, because if a state’s contribution to global GHG emissions falls below its ‘reasonable minimum’, then its contribution to that injury is not unlawful. Second, in both situations the ambiguity in question results solely from the fact that there are multiple potential contributors to the relevant injury.

A further justification for applying the Fairchild principle to the obligation to mitigate climate change concerns the fact that the ambiguity as to the ‘reasonable minimum’ amount by which any one state must reduce its emissions stems from the failure by states to agree on a globally applicable approach to sharing the burden of mitigating climate change. In Fairchild, Lord Bingham held that there was ‘a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so’.Footnote ²³ Thus, the potential injustice entailed by relaxing the approach on causation in such a case, that is, imposing liability on a negligent defendant who had not caused the harm in question, was ‘heavily outweighed by the injustice of denying redress to a victim’.Footnote ²⁴ By the same token, it is on balance surely more appropriate that states, and not the victims of the harm which they collectively cause, should bear the consequences of their failure to agree on an approach to distributing amongst themselves the global burden of mitigating climate change.

Applied in the context of climate change, this principle requires – insofar as global warming is on course to vastly exceed the 1.5°C target – that states’ respective contributions (past and projected) to global GHG emissions be presumed, as a starting point, to exceed a ‘reasonable minimum’ amount. This places the onus on states to provide, in the language of the ECtHR, a ‘satisfactory and convincing explanation’Footnote ²⁵ that they are not contributing to injury (or risk thereof) caused by climate change. It is important to note in this context that it is axiomatic that the adequacy of one state’s mitigation efforts depends on the mitigation efforts that they require of the rest of the world, if the 1.5°C target is to be achieved. Thus, to discharge its onus, a state is required to demonstrate that its approach to determining the extent of its mitigation efforts, if generalized globally, is capable of achieving that target, having regard to the mitigation effort it implies for the rest of the world (a point that the below analysis of the Urgenda decision will serve to clarify).

Furthermore, just as the ambiguity surrounding the causation question at issue in Fairchild was resolved in favour of the plaintiffs, the ambiguity as to the precise extent to which any particular state ought to reduce its GHG emissions, in order to hold global warming to the 1.5°C target, must also be resolved in favour of the victims of climate change-related injury. This simply reflects, as in Fairchild, the paramountcy of the need to prevent the injury that would result from global warming exceeding the 1.5°C target; any other approach would give rise to the possibility that states could ‘extricate’ themselves from their presumptive responsibility through mitigation efforts that, combined, would not be sufficient to hold global warming to that target. Thus, it requires the adoption of more demanding interpretations of states’ individual mitigation obligations, such as the exacting ‘due diligence’ standard of conduct advocated by Hunter Jones and Marjanac.Footnote ²⁶

Equally, it requires that a state’s mitigation efforts be judged according to more onerous approaches to measuring that state’s ‘fair share’ of the global mitigation effort (in particular for ‘developed’ countries, in light of their obligation to ‘take the lead’ under the Paris Agreement).Footnote ²⁷ It therefore provides a normative basis for relying on the approach of the Climate Action Tracker (‘CAT’) to measuring the compatibility of a state’s mitigation efforts with the 1.5°C target.Footnote ²⁸ The CAT’s approach is to construct a ‘fair share range’ from the wide range of approaches to measuring the fairness of a particular state’s mitigation efforts.Footnote ²⁹ That range is then divided into three sections: ‘insufficient’, ‘2°C compatible’, and ‘1.5°C compatible’. Each section corresponds to the temperature outcome that would result if all other countries were to adopt mitigation efforts of equivalent ambition relative to their respective fair share ranges. This approach reflects the point made above that the adequacy of a state’s mitigation efforts is necessarily relative to what it implies for other countries. And, in effect, it means that only where a state’s mitigation efforts are compatible with the relatively more demanding measures of fairness within its fair share range will those efforts be rated as compatible with the 1.5°C target.

18.4 Shared Responsibility, Climate Change, and Key Principles of ECtHR Jurisprudence

An analysis of shared responsibility under the ECHR for harm caused by climate change would not be complete without reference to a number of key principles of ECtHR jurisprudence that are essential to determining responsibility under the Convention. Chief among these is, of course, the margin of appreciation principle by which the latitude enjoyed by states in their implementation of the Convention is determined.Footnote ³⁰ As the ECtHR observed in Taşkin v. Turkey, ‘the Court has repeatedly stated that in cases raising environmental issues the State must be allowed a wide margin of appreciation’.Footnote ³¹ In Hatton v. United Kingdom, which concerned the regulation of noise levels associated with night flights into London’s Heathrow Airport, the Court explained that the margin of appreciation in this area stems from the fact that ‘national authorities have direct democratic legitimation and are … in principle better placed than an international court to evaluate local needs and conditions’.Footnote ³² Furthermore, it was not for the Court ‘to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this social and technical sphere’,Footnote ³³ a point that has been made by the Court in numerous environmental cases since.Footnote ³⁴

In the climate change context, states undoubtedly enjoy a very wide margin of appreciation when determining how to achieve their GHG emissions reductions, that is, when deciding from what sectors of the economy to seek to achieve their GHG emissions reductions or the mechanism used to do so. In ECtHR terminology, states enjoy a wide margin as to ‘choice of means’Footnote ³⁵ in this area. The same cannot be true, however, when it comes to the overall rate at which a state reduces its emissions. This follows not only from the nature of the rights at stake but also from the fact that the margin of appreciation is a creature of the principle of subsidiarity.Footnote ³⁶ The latter principle finds expression in the Court’s emphasis on state authorities’ greater ability to evaluate local needs and conditions and their democratic legitimacy (as in the above quote from the Hatton case). A state’s greater ability to assess its own local needs and conditions clearly does not, however, have the same relevance in the context of a global problem like climate change. Indeed, from its vantage point as an international court, the ECtHR is particularly well-placed to appreciate that if, for example, each state chooses a self-serving interpretation of its own ‘fair share’ of the global mitigation effort required to meet the 1.5°C target, that target will not be achieved. Similarly, a state could hardly rely on the democratically expressed preferences of its citizens to justify a less ambitious contribution to the required global mitigation effort.Footnote ³⁷

Another important point to note in this context is that the majority of environmental cases before the ECtHR have been addressed under Article 8, which protects the right to respect for private and family life and which permits interference with that right in certain circumstances. In these cases, the margin of appreciation principle has been invoked when determining whether the extent of the interference with this right was ‘necessary in a democratic society’ and justified on the grounds enumerated in the second paragraph of that Article. Thus, in Hatton, for example, the margin of appreciation was central in determining whether the relevant UK authorities had, in permitting a degree of interference with the Applicants’ Article 8 rights, struck a ‘fair balance’ between those interests and the competing economic interests served by permitting night flights into Heathrow Airport.Footnote ³⁸ When it comes to climate change, however, it is clear that the interference that would result from global warming exceeding the 1.5°C target could never be justified as being ‘necessary in a democratic society’. This is true not only as a matter of factFootnote ³⁹ but also because the 1.5°C target in the Paris Agreement reflects the international consensus as to the level beyond which global warming poses a threat to human well-being. And it is well-established that the expression of consensus via international instruments plays a central role in the interpretation of Convention rights.Footnote ⁴⁰ Thus, the question that the margin of appreciation has been used to answer in environmental cases decided to date is, in the context of climate change, already answered by the Paris Agreement.

Two other principles that relate to the interaction between the Convention and other aspects of international law are also relevant in this context. First, in the landmark case of Golder v. United Kingdom, the ECtHR held that general principles of law of the kind referred to in Article 38 of the Statute of the International Court of Justice must be taken into account when interpreting the Convention.Footnote ⁴¹ The principle of law applied in Fairchild has been recognized as a general principle of law of that kind.Footnote ⁴² It is also, incidentally, among the ‘norms and principles applied … in the domestic law of the majority of member States of the Council of Europe’, which are equally relevant to the interpretation of the Convention.Footnote ⁴³

Second, the Court has held that where there is ambiguity in the terms of a provision of international law of relevance to the interpretation or application of the Convention, it must ‘choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations’.Footnote ⁴⁴ Resolving the ambiguity of the CBDR principle in favour of victims of harm from climate change is an approach that is entirely consistent with the object and purpose of the Paris Agreement of holding global warming to the 1.5°C target. Indeed, the contrary approach, that is, one where states can adopt self-serving interpretations of the CBDR principle, is contrary to that object and purpose.Footnote ⁴⁵

The above-outlined approach to interpreting states’ mitigation efforts under the ECHR is also consistent with more generally applicable principles relating to the interpretation of the Convention. As far back as 1968, the Court held that it is ‘necessary to seek the interpretation that is most appropriate in order to realise the aim and achieve the object of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the Parties’.Footnote ⁴⁶ This is in contrast to the discounted view of Sir Gerald Fitzmaurice, set out in the above-mentioned Golder case, that ‘any serious doubt [as to the meaning of a Convention provision] must … be resolved in favour of, rather than against, the government concerned’.Footnote ⁴⁷ The above-outlined approach is also consistent with the related effectiveness principle, which requires that states’ obligations be interpreted in such a way that the right to live in an environment where climate change has not exceeded the 1.5°C target is ‘practical and effective’ rather than ‘theoretical and illusory’.Footnote ⁴⁸

18.5 A Comment on the Urgenda Decision

Against the background of the above analysis, it is appropriate to consider the landmark decision of the Dutch Supreme Court in Urgenda v. Netherlands.Footnote ⁴⁹ This case is of profound significance not only as the first in which a domestic court ordered a government to increase its GHG emissions reduction efforts but also because the Dutch Supreme Court arrived at this decision predominantly by reference to the Netherlands’ obligations under the ECHR. Central to this outcome was the range of GHG emissions reductions of 25 per cent to 40 per cent relative to 1990 by 2020, which was presented to the court by the applicants in that case.Footnote ⁵⁰ This range, which originated in the IPCC’s Fourth Assessment Report, referred to the amount by which the parties listed in Annex I to the UN Framework Convention on Climate Change (‘UNFCCC’) (broadly corresponding with ‘developed’ countries), including the Netherlands, would be required to reduce their GHG emissions to hold global warming to two degrees Celsius (‘2°C target’). The court ultimately held that the Netherlands was required to reduce its emissions by the lowest-end (25 per cent) figure in that range. In doing so, it followed an approach that, if replicated globally, would not be capable of keeping global warming even to the 2°C target on which that case was based; as has been noted by two leading experts on climate change mitigation policy, ‘systematic court decisions that governments must follow the least-ambitious end of an equity range would be insufficient to achieve the [goal of the] Paris Agreement’.Footnote ⁵¹

What is relevant for present purposes is how the Dutch Supreme Court came to hold, in the context of the Netherlands’ obligations to mitigate climate change under the ECHR, that the ‘equity range’ in question was applicable and, further, that it was appropriate to opt for the lowest-end figure in that range. With regard to the equity range itself, the court referred to the fact that the parties to the Kyoto Protocol to the UNFCCC, which included the Netherlands, had agreed that the countries listed in Annex I to that Convention ought to reduce their emissions according to this range in order to prevent climate change from exceeding two degrees Celsius.Footnote ⁵² This demonstrated ‘a high degree of international consensus on the urgent need for the Annex I countries to reduce greenhouse emissions by at least 25–40 per cent by 2020 compared to 1990 levels’, which could be ‘regarded as common ground’ among such states for the purpose of the ECHR principle of consensus referred to above.Footnote ⁵³

As regards the decision to opt for the lowest-end of this range, it held that while the determination of ‘the share to be contributed by the Netherlands in the reduction of greenhouse gas emissions is … in principle, a matter for the government and parliament, the courts can assess whether the State, with regard to the threat of a dangerous climate change, is complying with its duty … under Articles 2 and 8 ECHR’.Footnote ⁵⁴ This duty requires the state to pursue ‘a policy through which it remains above the lower limit of its fair share’.Footnote ⁵⁵ It emphasized, however, that ‘in determining the State’s minimum obligations, the courts must observe restraint’.Footnote ⁵⁶ The lowest-end figure 25 per cent could ‘therefore be regarded as an absolute minimum’ that the court was entitled to require the government to achieve.Footnote ⁵⁷

It is notable that in its analysis of the obligations under Articles 2 and 8 of the ECHR to protect people against environmental hazards, the Dutch Supreme Court held that ‘states are obliged to take appropriates steps without having a margin of appreciation’ and that ‘states do have discretion in choosing the steps to be taken, although these must actually be reasonable and suitable’.Footnote ⁵⁸ It therefore seemed to be indicating that a state’s margin of appreciation in this area is confined to ‘choice of means’. It is clear, however, that in opting for the lowest end of the range in question based on separation of powers-type considerations, the court did, in effect, determine that the state enjoys a significant margin of appreciation regarding the total amount by which it must reduce its emissions. After all, separation of powers principles, based as they are in domestic constitutional law, play no role in determining the nature of states’ obligations under the Convention.Footnote ⁵⁹

The decision by the lawyers for Urgenda not to pursue on appeal the similar decision of the Hague District Court to opt for the 25 per cent figure has been criticized as a ‘a major flaw in the treatment of this case’.Footnote ⁶⁰ This view is misguided. On the contrary, the wisdom of that tactical decision is borne out by the fact that the Dutch Supreme Court would clearly have been unwilling to entertain such an argument. What the decisions of both Urgenda’s lawyers and the Dutch courts do point to, however, is that recognition of shared responsibility, and the consequences that it entails, is needed to enhance the efficacy of climate change litigation at the domestic level.

18.6 Conclusion

Securing some of the most fundamental of Sofia, André, Cláudia, Martim, Mariana, and Catarina’s rights – and those of their generation – now depends on governments adopting not just greater GHG emissions reductions but the ‘deep and urgent’Footnote ⁶¹ reductions that the science says are necessary to hold global warming to the 1.5°C target. International courts such as the ECtHR have a critical role to play in ensuring that human rights law does in fact require states to adopt such measures. Rules of shared state responsibility and a related centuries-old principle of law that applies to causal uncertainty and multiple contributors to harm equip them well to do so.Footnote ⁶² The power of the latter principle in particular lies in how it renders ambiguities in the international climate change legal framework – the benefit of which has in practice mostly accrued to states to date – a problem for states and not victims of harm from climate change. In the ECHR context, these principles further combine with long-established principles of ECtHR jurisprudence to ensure that the Convention can, and indeed must, provide a response to the climate crisis that is proportionate to the threat that it poses. A decision of the kind sought by the youth-applicants in this case the subject of this chapter would therefore significantly augment the potential of human rights–based climate change litigation first unlocked by the Urgenda case. It would, in other words, go a long way towards realizing the promise held by the ‘rights turn’ in climate change litigation.

In Brazil, climate litigation has gained strength as a result of recent national experiences. Brazilian legal researchers have been developing studies in this field, now published in Portuguese, and debates are occurring in institutional and legal arenas throughout the country. Since the climate crisis functions according to a logic that is both global and local, it is very important to understand certain local dynamics in order to propose local solutions and consider how these solutions can contribute to the global agenda on the climate crisis. In this chapter, we offer an analysis of climate litigation within the current context of attacks on Brazilian democracy, the growing risks of a climate collapse, and a possible response from civil society. This chapter ultimately provides insight, based on the experience of a civil society organization, into how strategic litigation can be an important tool to combat such setbacks.

19.1 The Environmental and Climate Crisis in Brazil

Since President Bolsonaro’s first day in office in January 2019, the Brazilian government has been imposing restrictions and increasing its control over the actions of civil society.Footnote ¹ The activities of human rights and environmental defenders have been increasingly criminalized. The government has suppressed rights, weakened protections for forests and Indigenous peoples, and cut funding for policies on the protection of human rights and the environment, among other threats and forms of backlash.Footnote ²

In 2019, fires and deforestation hit record levels in Brazil, especially in the Amazon. Fires in the Amazon are common in August. However, the rates compiled by the National Institute for Space Research (INPE) showed an increase of 84 per cent in 2019 in comparison to the same period in 2018.Footnote ³ After the data was published, President Bolsonaro fired the president of the INPE, alleging that the data was false – a claim that was contested by several scientists in the country and abroad, including NASA.Footnote ⁴ Investigations into the possible direct involvement of land grabbers and farmers in the fires are currently underway. Bolsonaro has, however, attacked NGOs and blamed them for the fires. Deforestation has been strongly linked to the agribusiness sector and irresponsible and illegal logging.Footnote ⁵

Yet, despite these challenges, the government continues to cut funding for environmental protection. Moreover, importantly, the Environment Minister himself is under investigation for environmental crimes, and in late February 2020, he dismissed the employees of his ministry responsible for climate policies. In the past, the Minister described global warming as a secondary issue and claimed, as did the president, that fines for environmental crimes were ideologically motivated.Footnote ⁶ Bolsonaro has also claimed several times that Brazil has an ‘industry’ of environmental fines, which put too many limits on development. Less than 95 per cent of these fines, however, are actually paid.Footnote ⁷ Many officials hired to work for the Bolsonaro government challenge the concept and very existence of climate change.

The government has been weakening the institutional framework established to protect people and the environment. It continues to support the relaxation of environmental laws despite the clear impacts that a poor and incomplete environmental licensing system generates, especially when combined with an irresponsible and predatory mining sector, as can be seen in the tailings dam disasters in Brumadinho and the Doce River.Footnote ⁸ The legacy of these disasters still looms large for the affected communities: death, destruction of livelihoods, pollution of rivers and land, intensification of social and land-related conflicts, gender discrimination, health problems, and threats to defenders, among other harms. To make matters worse, these negative impacts are present in almost all mining projects in the country. These disasters were not enough to prevent the government from supporting a new licensing bill that, if passed, will speed up and simplify the licensing process for projects.

The government continues to present and support many other bills that clearly threaten the environment and Indigenous and traditional communities, such as bill no. 191/2020.Footnote ⁹ Unfortunately, Brazil is a global leader in the killing of rights defenders, according to the 2018, 2019, and 2020 Global Witness reports.Footnote ¹⁰ Brazil has always been one of the most dangerous places in the world for human rights defenders, particularly in rural areas. Yet, as a result of the new political context, in 2019, it became even more dangerous to be a human rights defender.

Serious setbacks regarding environmental and climate issues have resulted primarily from a political context where the institutional structure for environmental protection is not only neglected but also dismantled. This has put the effectiveness of these legal instruments to the test. Yet, in the midst of such an unfavourable context, they are increasingly being used as a tool to demand that public authorities fulfil the obligations established by legislation. This trend is increasingly important given that, in Brazil, climate issues are managed mainly by the executive and legislative branches of government, which are often the direct (or indirect, by omission) perpetrators of attacks on the environment. This much was recently revealed in a statement by Environment Minister Ricardo Salles, who admitted to using the COVID-19 pandemic to distract public attention in order to ‘run the herd through’ and undermine environmental protection legislation.Footnote ¹¹

19.2 Environmental and Climate Racism as a Challenge

Some groups suffer from environmental and climate impacts more intensely than others,Footnote ¹² particularly in countries where structural racism pervades society, as is the case in Brazil.Footnote ¹³ The groups affected the most by socio-environmental disasters – natural or man-made – are generally poorer, non-white populations, in which women are even more harshly impacted. The intersection of characteristics like gender, race, class, and territoriality increases the experience of oppression and the marginalization of poor and non-white women.Footnote ¹⁴ It also affects how they experience socio-environmental impacts, which are assumed to be more intense for them than for other women.

Yet, even though different groups experience environmental harms differently, the effects of climate change will be increasingly felt by all. In January and February 2020, the rains in the Brazilian south-eastern states of São Paulo, Minas Gerais, and Espírito Santo were so intense that they affected the richer and white populations living in the posh city neighbourhoods close to the rivers that flooded, in addition to impacting poorer and more marginalized communities.

In São Paulo, it rained more in a twenty-four-hour period than it had in the last thirty-seven years. As a result, 5 people died, 500 were displaced, 142 lost their homes, and thousands were unable to go to work. In Minas Gerais, the volume of rain for the month of January was the highest it had been in 110 years. There, 101 cities declared a state of emergency, 55 people were killed, and over 45,000 were forced to leave their homes. The mayor of Belo Horizonte, the state capital, stated that reconstruction of the city will cost over seventy million US dollars. In addition, in the state of Espírito Santo, over 10,000 people left their homes as a result of floods caused by the heavy rains.

Despite the fact that the rainy season in southern Brazilian states occurs during the country’s summer, from December to March, such heavy rains were not frequent. The social and environmental disasters that they have caused were the combined result of the failure to implement public policies to deal with the impacts of climate change, poor urban planning, and the global increase in rainfall as a result of climate change. In the state of São Paulo, for instance, 42 per cent of the budget for policies to prevent the impacts of floods have not been used.Footnote ¹⁵

19.3 Contextualized Strategic Litigation as a Possible Response

Considering the context described above, it is clear that socio-environmental threats are a human rights issue and, as a result, are on the human rights agenda. Human rights and environmental activists and NGOs met in September 2019 at the Peoples’ Summit on Climate, Rights and Human Survival to discuss these intersections and plan for the future.Footnote ¹⁶ As already stated by United Nation reports and documents, climate change and human rights must be acknowledged as major challenges for civil society.Footnote ¹⁷ The interdependence of the climate system and human rights, coupled with governments’ failure to implement effective policies to combat climate change, have contributed to the emergence of numerous climate cases around the world.Footnote ¹⁸ Among the host of avenues for climate action, climate litigation has become a worldwide trend.Footnote ¹⁹

Conectas Human Rights has created a schematic chart to help visualize the possibilities for climate litigation in the Brazilian context.Footnote ²⁰ Figure 19.1 illustrates the possible combinations of climate actions based on two criteria: (1) the scope of the action and (2) the relationship with specific climate legislation. For the first criterion (scope), the action can be ‘structural’ or ‘isolated’. With respect to the relationship with climate law, it can be ‘direct’ or ‘indirect’.

Figure 19.1. Possible combinations of climate litigation cases.

Source: Adapted from Guia de Litigância Climática (Conectas, 2019).

Structural court actions are those that tend to challenge complex public policies with a wide territorial scope (such as national adaptation policies). Isolated court actions can exist under different modalities. They can be those in which the objective of the action is to obtain a more administrative decision (such as the requirement to carry out a climate impact assessment to obtain a licence for a thermoelectric plant), those where the focus is sectorial (as in the energy and urban mobility cases), or, finally, those cases filed with subnational authorities.

Direct actions are those where the main basis is climate change, in fact and in law. An example of such a climate dispute is one that directly questions climate programmes and policies and is expressly based on climate laws and climate-related institutional frameworks. Indirect climate actions are ones in which environmental norms and other legal arguments not explicitly linked to climate change are invoked, but the result, if favourable, would have an important impact on climate mitigation or adaptation. An example of a hypothetical indirect action is a dispute that requires authorities to protect the peoples of the forest, in which one could argue that the importance of these peoples is their role in forest management without explicitly mentioning the conservation of ecosystems that serve as carbon sinks.

In the Brazilian context, the combination of these two criteria – scope and climate approach – creates numerous possibilities for configuring a concrete climate lawsuit. Any court actions developed based on these criteria and this schema have varying chances of success and face certain challenges. Structural actions tend to attract more controversial issues that are part of the broader legal debate about the relationship between the judiciary and other powers, and they may be costlier due to the action’s potential proportions and the procedural financial support needed, especially in the preliminary procedural phases. Isolated actions, in turn, can be promising, as they reduce the risks associated with ‘all or nothing’ scenarios – that is, they can serve as a litigation experience, and they can be replicated.

Direct actions can help raise awareness and facilitate the direct enforcement of climate laws within the judiciary and by other actors in the justice system. However, there is a risk that the initial burden of demonstrating the very existence of the climate impacts at issue through scientific evidence will raise challenges associated with causation. Indirect actions are an alternative approach and more subtly tackle the climate issue, addressing the determinants of global warming in language that has already been tested in court. A favourable decision in an indirect action can have positive repercussions for the climate issue as a whole. One downside is that by not addressing climate issues directly on a factual and legal basis, it does not serve as an opportunity to raise normative awareness of climate change among judges and courts.

19.4 An Overview of Climate Litigation in Brazil

Brazil was the first country to sign the UN Framework Convention on Climate Change at the 1992 Earth Summit in Rio and commit to mitigating the effects of the climate crisis. It has made several efforts to develop a legal framework specifically for this purpose: it developed the National Policy on Climate Change (or PNMC, its acronym in Portuguese), Law no. 12,187 of 2009, and created the National Climate Change Fund, Law no. 12,114 of 2009.Footnote ²¹ It has extensive environmental legislation that could potentially be used as a basis for climate litigation, as well as constitutional guarantees on environmental protection – namely, article 225 of the Federal Constitution, which states that all have the right to an ecologically balanced environment.Footnote ²²

Within this context, climate litigation is becoming an extremely important means for forcing the state or third parties to comply with these standards. This adds another actor to the system of climate governance in Brazil, in addition to the executive and legislative branches: the judiciary.Footnote ²³ Climate litigation could thus serve as a means to obtain redress not only for direct acts that negatively affect the climate but also for omissions by the state, like the failure to develop and implement climate adaptation and mitigation measures. However, in Brazil, as in much of the Global South, climate litigation, as understood by mainstream literature, is a recent phenomenon.Footnote ²⁴ As a result, there is no well-established doctrine and case law on this subject in Brazilian law.Footnote ²⁵

Among the small number of Brazilian cases on climate change, the vast majority have been indirect, as they have addressed climate change as a peripheral issue and only a couple of cases have made it to the Brazilian Supreme Court (Supremo Tribunal Federal or STF), the highest court in the Brazilian justice system.Footnote ²⁶ This only changed in 2020, when ADO 60 (Ação Direta de Inconstitucionalidade por Omissão no. 60) – the Climate Fund Case – on the suspension of the activities of the Climate Fund was submitted directly to the STF.Footnote ²⁷

Before 2020, one of the most important cases to be heard by the STF with indirect climate consequences was the 2012 Forest Code case, which ended in 2018. Since this case focused on the preservation of forest fragments and compensation for consolidated areas,Footnote ²⁸ it involved carbon sinks and thus greenhouse gas emissions. The STF ruling that allowed sugarcane producers to burn their fields was also important, as it ignored the negative climate and environmental impacts that this practice generates.

The Superior Court of Justice (another important Brazilian court, known as STJ, its acronym in Portuguese) has seen a wider variety of cases that can be classified as climate litigation. Three precedents are worth highlighting. The first case,Footnote ²⁹ presided over by Justice Herman Benjamin, dealt with a garbage dump and the illegal drainage of a mangrove forest. The ruling condemned the company responsible for the environmental damage, ordering it to remove the landfill and the buildings it had constructed in the mangrove area and reforest the area in accordance with the specific characteristics of mangroves. In his argument, endorsed by the other judges, Justice Benjamin cited the important role that mangroves play in controlling climate change and sea level rise, one of their main ecological functions.

The second caseFootnote ³⁰ worth highlighting, which banned the use of fire to burn straw in sugarcane harvesting, contrasts with the aforementioned ruling by the STF. In this STJ ruling, Justice Humberto Martins references the release of carbon dioxide into the atmosphere in his recommendation. The third precedentFootnote ³¹ also uses climate-related arguments to oppose fires – which, in this case, were illegal – and justify the fine levied for the illegal use of fire, an administrative infraction. Justice Herman Benjamin explicitly mentions the climate change emergency in his recommendation. These precedents set by the STJ demonstrate the court’s concern with climate change and indicates that a joint interpretation of Brazil’s environmental laws, even on climate-related issues, is possible.Footnote ³²

The public civil actions (or ACPs, their acronym in Portuguese)Footnote ³³ that address climate change are also noteworthy. In 2010, the Public Prosecutor’s Office filed a series of ACPs against more than thirty airline companies operating out of the Guarulhos Airport, demanding that they, through reforestation, offset or compensate for the greenhouse gas emissions generated by the taking off and landing of airplanes. The basis for the request was the harm emissions inflict upon the atmosphere and the Brazilian Environmental Policy. In 2017, the São Paulo Public Prosecutor’s Office launched an ACP against the São Paulo Environmental Agency (Companhia Ambiental do Estado de São Paulo or CETESB) in an effort to preserve coral reefs, given their important role in combating rising sea levels.

As illustrated in Figure 19.1, the main precedents and trends in climate litigation in Brazil can be classified according to the aforementioned schema. The public civil action involving the Guarulhos Airport was an example of direct climate litigation since the core demand in the case was the reduction of greenhouse gas emissions. This case, however, was the only direct climate litigation prior to 2020. Indirect cases comprise the rest of the case law; some of them are specific, like the cases brought before the STJ, while others are structural, like the lawsuits challenging the constitutionality of the Forest Code.

In 2019 and 2020, as global attention to climate change increased – thanks in part to the mobilizations of youth movements and the COVID-19 crisis – and as the issue continued to appear in courts around the world, climate litigation in Brazil began to further develop and increase in scope. On 5 June 2020, World Environment Day, the Brazilian Association of Members of the Public Prosecutor’s Office for the Environment (Associação Brasileira dos Membros do Ministério Público de Meio Ambiente or Abrampa), four political parties, and two NGOs (Greenpeace and Instituto Socioambiental – ISA) launched three court actions challenging Brazil’s current environmental policy, with consequences in the climate field.Footnote ³⁴

The first of the three recently launched actions is a public civil action filed by Abrampa, Greenpeace, and ISA against the federal government and the Brazilian Environmental Agency (IBAMA) at the Federal Court of Amazonas. The lawsuit contests IBAMA president Eduardo Bim’s decision to permit the export of wood without government inspection – a decision that contradicted the recommendations of the institution’s experts. This litigation can be considered indirect, as deforestation has major climate consequences since forests are natural and structural carbon reservoirs. The decision being contested, moreover, was valid for the entire country and is part of a trend in the government’s overall environmental policy. In the initial petition, the authors explicitly mention climate change.

The two other cases are constitutional actions filed by four political parties at the STF against the federal government.Footnote ³⁵ The first oneFootnote ³⁶ addresses the recent suspension of the activities of the Amazon Fund (Fundo Amazônia),Footnote ³⁷ whose goal is to support projects that combat deforestation and promote the conservation and sustainable use of the Legal Amazon region. Given the exponential increase in deforestation rates and the serious fires that occurred in 2019, the political parties are arguing that the federal government’s decisions are unconstitutional by omission: the failure to make the Fund’s resources for protecting the Amazon available constitutes a violation of the government’s constitutional obligation to preserve and protect the environment (art. 225 of the Constitution). The political parties are asking the STF to order the federal government to take administrative measures to reactivate the Amazon Fund. This court action can be considered structural climate litigation, and it falls between direct and indirect. It is structural because it deals with one of the main funding mechanisms for Brazil’s climate policy, the Amazon Fund. It can be classified as falling between direct and indirect because climatic balance is an indirect consequence of the protection of the Amazon, and yet, in a context of the climate emergency, the protection of the Amazon is also a specific mitigation measure.

The second case,Footnote ³⁸ for its part, is a direct and structural court action related to climate change.Footnote ³⁹ It can be categorized as such because it deals with the freezing of the Climate Fund (Fundo Clima), which, similar to the Amazon Fund, is part of the Brazilian system of climate governance. However, it focuses specifically on reducing greenhouse gas emissions and climate adaptation. At the beginning of his mandate, Environment Minister Ricardo Salles dissolved the Secretariat of Climate Change, which was responsible for administering the Climate Fund. In April 2019, President Bolsonaro issued a decree extinguishing the Fund’s Steering Committee. The Fund’s activities have since been suspended, which drove the political parties to file the case and demand the immediate reactivation of the Fund and the elaboration of a plan within a thirty-day period on the use of its resources, as well as a plan for the next two years.

Finally, on 11 November 2020, seven political parties brought another constitutional action before the Federal Supreme Court against the federal government and its bodies for their acts and omissions in executing the primary national deforestation policy, the Action Plan for Deforestation Prevention and Control in the Legal Amazon (PPCDAm). While the lawsuit was formally brought by political parties due to the procedural requirements of the legal pathway, its development has been led by a coalition of civil society actors.Footnote ⁴⁰ The lawsuit asserts that the government, through its inadequate implementation of PPCDAm and its failure to control deforestation in the Amazon, is significantly contributing to dangerous climate change. The plaintiffs also claim that the government has violated the fundamental rights of the populations living in the Amazon and throughout Brazil, particularly the rights of Indigenous peoples and traditional communities, as well as those of present and future generations.Footnote ⁴¹

19.5 Climate Litigation in Brazil: The Challenges

Although climate litigation has been increasingly recognized in recent years as an effective tool for climate mitigation and adaptation, there are still many challenges associated with its development, especially in the Global South. The large majority of existing cases and academic literature on the subject are from the Global North, where not only the climate differs but so do economic and legal conditions. Furthermore, countries in the Global South tend to experience a greater lack of capacity within government agencies, civil society, and the judicial system when broadly compared to the Global North.Footnote ⁴²

In Brazil, the most common types of environmental cases relate to the protection of forests, fauna, and flora, animal protection, nature conservation, soil protection, natural resources, and sustainability. As a result, there is a theoretical-legal gap in the area of climate change, given that environmental law is the legal framework most frequently used and there are limitations to its capacity to handle specific issues in the field of climate change.Footnote ⁴³ The debate on this subject is split between two different positions. Those who hold the first position believe that the best way to proceed is to raise the climate debate directly and talk specifically about climate change. Those who hold the second position prefer to use a more evasive strategy that involves addressing the problem indirectly and using issues already dealt with under environmental law as the main grounds for the proceedings.Footnote ⁴⁴

As mentioned earlier, litigation strategies can be described according to two types of judicial-procedural arrangements: the scope of the case and the relationship with specific climate legislation. The scope may be structural or isolated. The relationship with climate legislation can be direct or indirect. Yet, although this opens a range of possibilities for litigation, this area is nonetheless limited in Brazil as a result of procedural issues and matters related to the legal system’s organization. Problems arise, for example, from the fact that structural action requires greater efficiency within government branches and is more costly (primarily due to the costs related to the proceedings). Structural action also creates more obstacles in terms of proving the causal link, since the litigator must gather empirical evidence on compliance or non-compliance with national or sectoral policies. As for cases with a specific scope, they tend to be easier as they are related to specific, concrete cases that do not challenge institutional and political structures. This demonstrates one of the problems associated with the judicialization of climate issues in Brazil, which may help to explain why only one structural and direct court action has been filed in the country thus far.

Furthermore, other factors hindering the development of a culture of climate litigation in Brazil include the slowness of the courts, which also raises the costs of litigation, and the lack of knowledge and disinformation of judicial bodies and judges on the issue. In cases involving the private sector, there is additional difficulty in holding companies accountable, often due to the asymmetry in resources at the litigants’ disposal as well as the corporate veil, which makes it difficult to hold corporations responsible.Footnote ⁴⁵

In short, the biggest challenges facing climate litigation in Brazil, especially if the litigation is direct, are the lack of interest on the part of the government in promoting, funding, and supporting climate-related issues (including research and studies), the current political and environmental crisis, and the way that the Brazilian judiciary functions and Brazilian legislation is structured, which allows environmental issues that are not specifically climate-related to prevail.

19.6 Conclusions and Possibilities

Brazil does not yet have a paradigmatic case of climate litigation. To summarize, most of the cases that can be classified as relevant to climate change are generic environmental and/or human rights actions that address some climate issues. Key actors currently discussing climate litigation generally believe that it would be best and safer to start with easy and isolated lawsuits, given that certain legal hypotheses have not yet been fully tested. Brazil’s judiciary does not yet seem particularly concerned with climate issues. Nevertheless, the debate on climate litigation in Brazil has emerged in recent years, led notably by academia.

Climate litigation strategy also needs to go beyond the traditional normative frameworks that use, for instance, only civil liability and environmental law. Opportunities to use non-environmental legislation in a creative way exist. For instance, it is possible to use legal frameworks that challenge the actions and omissions of public and private actors, such as those on public financing, public procurement, business law, civil legislation (in innovative sub-areas), and disaster law. More importantly, lawsuits should take into consideration the intersectionalities mentioned earlier in order to force the judiciary to address the conditions of affected communities and victims. Environmental and climate racism generates a great deal of injustice, and climate litigation could be an innovative tool to combat it.

20.1 Introduction

India is the third-largest emitter of carbon, and evidence suggests that it will overtake China and the United States soon given its increasing dependence on fossil fuel for energy and with 29 per cent of its population living in poverty and without access to electricity.Footnote ¹ India is in a difficult position as it seeks to balance the competing priorities of economic growth, energy security, and climate change.

In the coal-rich state of Odisha, a new coal mine is set to expand. The coal from the mine is being used to feed the energy demands of a growing economy. The local community, whose land is to be acquired, is currently challenging the ongoing destruction of 120,000 trees and the endangerment of the ability of these forests to mitigate climate change.Footnote ² This contestation provides a glimpse into the multiplicity of factors that shape the challenge of addressing climate change in India.

The Indian judiciary has played an active role in addressing issues of environmental protection and human rights. Public Interest Litigation (PILs), which allows those without locus standi to approach the courts over an issue of public interest, has become the dominant pathway through which environmental cases are filed, oftentimes on human rights grounds. PILs in India have incorporated international human rights and environmental law principles such as the polluter pays principle; the public trust doctrine; and the right to free, prior, and informed consent.Footnote ³ The judiciary in India, in particular within the context of the environment and climate change, has been selectively progressive and overreaching, as its judgments affect the activities of regulatory bodies and shape governance structures for the environment.Footnote ⁴

The Narendra Modi administration came into power promising economic development and a business-friendly regulatory environment. It began with an aggressive overhaul of environmental laws, where it sought to eliminate safeguards put in place for processes like the environmental and forest clearances. This was followed by attempts to change land acquisition laws to enable easy acquisition of land for industries. Initiatives to address climate change sit within this broader neoliberal growth agenda. The government’s efforts to address climate change concerns have focused on certain mitigation strategies like renewable energy and afforestation.Footnote ⁵

Climate change litigation in India is still in the nascent stages. A recent case filed before the National Green Tribunal explicitly argues for the court’s intervention in addressing climate change.Footnote ⁶ While environmental organizations and activists have often approached the courts to address environmental issues ranging from deforestation to pollution, before this case, they had not explicitly called for intervention on climate change, though it may have appeared in the broader orbit of the judgment. The court, nevertheless, has been the space where regulatory failures to address environmental issues have been checked, and the judiciary has taken a far-reaching role in compelling the government to protect the environment.

The looming contestation on climate change in future litigation may strain environmentalism. India has historically been a place where environmentalism was shaped both by concerns for the natural environment and demands for social justice. Ramchandra Guha spoke to this form of environmentalism as the environmentalism of the poor. In India, human rights and the rights of the local community impacted by environmental harms were at the heart of the environmental question. This strain of environmentalism, however, exists alongside exclusionary conservation, particularly in forest areas where the recognition of the rights of forest-dwelling communities is viewed as hampering the conservation of these areas.Footnote ⁷ The role of the judiciary in climate change litigation will continue to be shaped by the choices that courts make between these different strains of environmentalism and the impact these choices have on forest-dwelling and other local communities.

In response to the questions animating this collective volume, I seek to address two issues in this chapter. First, what has the role of courts been with respect to climate change? Second, what is the potential role for courts in addressing climate change in India, given the associated challenges? These questions are interrelated, and they will help contextualize the discussion on the strategic potential for climate change litigation in India, given the country’s ambitious growth agenda and divergent strains of environmentalism.

I argue that courts have played a significant role in environmental governance, which carries into the regulation of climate change. However, I qualify this argument by examining the vulnerability of court decisions in PILs that have adversely impacted forest-dwelling and other local communities shaped by India’s development agenda. Given this caveat, I argue that courts can play an important role in climate change governance, provided they adopt a more sensitive approach to questions of climate justice.

This chapter begins with an overview of courts and environmental jurisprudence in India and then focuses on climate change in the courts. It then will then contextualize the role of the courts in environmental decisions in light of the neoliberal economic growth paradigm and divergent strains of environmentalism. Section 20.3 will trace the potential for climate change litigation and its associated challenges. The chapter concludes by arguing that courts can play an important role in climate change governance, but their potential must be approached cautiously.

20.2 Courts and Environmental Jurisprudence in India

Courts in India have been the sites of discussion for key questions of public policy, pollution, and environmental governance. The innovation of public interest litigation in post-emergency India prompted passionate environmental lawyers and local communities adversely impacted by development projects to approach the courts. This avenue opened by PILs ultimately produced a mixture of progressive and problematic environmental jurisprudence.

Progressive environmental jurisprudence in India has spurred ailing environmental governance bodies into action and helped secure the rights of forest-dwelling communities to land and resources and democratize environmental decision-making. The creation of the National Green Tribunal (NGT) in 2010, moreover, opened a specialized and dedicated avenue for environmental disputes. With the creation of the NGT, many progressive judgments followed.

The progressive streak of environmental jurisprudence in India exists simultaneously with decisions that undo the progressive impact of this jurisprudence. The undermining of the progressive impact results from the prioritization of economic concerns and the demands of exclusionary conservation, which will be elaborated below. As a result, looking to courts to push for action on climate change carries the risk of creating bad precedent that does not prompt better laws.

20.3 Climate Change in the Courts

In identifying the cases that come within the ambit of climate change, and drawing from Peel and Lin as well as Lavanya Rajamani,Footnote ⁸ I identify two categories of cases: (1) those cases where climate change forms the core of the legal arguments made by the petitioners and (2) those cases where the legal claims at issue relate to climate change concerns but do not explicitly refer to it. Looking at these two categories generates a wide range of cases that relate to climate change mitigation but fewer cases that relate to adaptation. I, moreover, restrict the scope of my inquiry to landmark cases in the Supreme Court, High Court, and the National Green Tribunal.

20.4 The Challenges Associated with Climate Change Litigation

Though the judiciary has been responsive to environmental issues in India, there have been some limitations. Below is a schematic overview of those limitations that have a bearing on climate change litigation. The list is not exhaustive but rather is intended to be diagnostic while bearing in mind the role that the judiciary has played thus far on the environment.

20.5 The Strategic Potential for Climate Change Litigation in India

The strategic potential for climate change in India is one framed by its limitations. The judiciary has been effective in fostering a culture of compliance with environmental norms and accountability on the part of environmental regulatory bodies to their citizens. The judiciary is an important actor in the constellation of actors involved in climate change governance and policy. The judiciary cannot, however, be viewed in isolation of the political economy in which it operates. As India becomes increasingly dominated by an aggressive development agenda, many have viewed the judiciary as a hurdle to speedy growth.

20.5.1 Connecting Existing Jurisprudence on Environmental Justice with the Climate Crisis

The strategic potential of climate change litigation in India lies in the ability to harness rights-based environmental jurisprudence and frame it relative to existing climate change policies in India. India has an ambitious National Climate Action Plan with eight missions, including one that is specific to the Himalayan region.Footnote ²³ Yet, cases have not yet been filed in which climate change concerns are pegged to rights-based environmental jurisprudence informed by the discourse of environmentalism of the poor.

There is a significant need to connect India’s rich jurisprudence on environmental justice to the impending climate crisis. The jurisprudence on the rights of forest-dwellers, as seen in the Niyamgiri case, needs to frame future interventions in the courts. While the challenge of exclusionary conservation remains, interventions in court need to harness the progressive jurisprudence that exists and strengthen its position as a precedent and guiding force that shapes future jurisprudence.

India’s environmental jurisprudence, which articulates key legal principles like the public trust doctrine and the stewardship rights of forest-dwelling communities, can be drawn upon to reinvigorate these core legal principles and the role the jurisprudence can play in addressing climate change. The application filed by Richa Pandey draws on some of these principles, but its thrust was based on India’s international legal obligations. The order by the National Green Tribunal thus stated that there is

no reason to presume that the Paris Agreement and other international protocols are not reflected in the policies of the Government of India or are not taken into consideration in granting environment clearances.Footnote ²⁴

Shibani Ghosh alerts us to a cautionary note in her work on litigating climate claims: Indian courts remain superficial in their understanding of international environmental law obligations. Specifically, she states:

Indian environmental judgments often rely on international environmental law while interpreting statutory obligations, but judicial reasoning in such situations is not always robust, and the engagement seems superficial at times. A similar treatment can be seen in the context of climate claims where the courts refer to the UN Framework Convention on Climate Change, the Kyoto Protocol, the Paris Agreement, and India’s NDCs. Like elsewhere, the courts’ reliance on these instruments is not always accompanied by strong judicial reasoning that explains how India has violated or is required to comply with, an international obligation.Footnote ²⁵

The ability to frame climate claims within the boundaries of India’s climate policies and environmental frameworks can help progressively develop the jurisprudence on climate change. Although it’s hard to predict the precise outcome of approaching the courts, couching legal arguments in existing jurisprudence can create a jurisprudential arc that connects the existing understanding of environmental justice to the impending climate crisis.

The court should be viewed as an important node and institution within the overall climate change and environmental governance system. Courts can inform and influence future legislative decisions and administrative actions. They can also catalyze powerful change across spheres of environmental governance, which, in turn, can be harnessed to change India’s approach to climate change while at the same time remaining mindful of the limitations of such an approach.

In addition to existing environmental jurisprudence, inspiration can be drawn from movements on the ground, including ongoing campaigns by younger students and Adivasi communities. A recent campaign called #I AM A CLIMATE WARRIOR reframed the struggle of forest-dwellers to control their land and resources as being important for the conservation of forests in the face of climate change (see Figure 20.1).

Figure 20.1 Image of the Climate Warrior Campaign

Interventions outside courts like this one will inform future court cases and the arguments that are made. As forest-dwelling communities begin to rearticulate their rights as being necessary for climate stewardship, a new opportunity for legal mobilization emerges. This strategic potential must be explored, bearing in mind the risks associated with approaching the courts.

To understand the strategic potential of a particular case, I suggest the development of a sort of litigation impact assessment process, which can be undertaken to understand how a particular case will impact the rights of Indigenous and other local communities and develop a strategy to overcome any adverse impacts. For instance, the ban on mining in the Western Ghats has led to large-scale unemployment and, consequently, highlights the need to incorporate aspects of just transition in future court interventions.

A strategic case that, after a thorough impact assessment, has the potential to join the many aspects discussed is a constitutional challenge, under Article 21, to the Indian government’s recent move to privatize its coal resources and make them available for commercial coal mining. At the same time that the Indian government moves to expand coal mining, the state has an impressive plan already in place to transition to renewable resources as part of its climate change mitigation strategy and in line with the solar mission in the national climate action plan.

The Indigenous communities living in different parts of India’s coal belts are often subject to land grabs, deforestation, and pollution. A case brought by these impacted communities, like the communities in Talabira, Odisha, can pave the way for the judiciary to grapple with the many features of climate change while addressing the aims of the state’s policies on climate change mitigation and environmental justice. Although it is difficult to predict how the judiciary would decide such a case, the case would nevertheless bring the reality of climate change governance and policy to the courts and may foster the development of a more nuanced jurisprudence that avoids the mistakes identified earlier.

20.6 Conclusion

In this chapter, after an overview of climate change litigation in India, I have argued that courts are an important site for the negotiation of pertinent questions regarding the environment and development. I qualified this with the limitations of the judiciary, which has failed to curtail development activities that harm the environment and the marginalizing discourse of exclusionary conservation.

As India opens the coal mining sector, a legal challenge has been mounted by sub-national states like Jharkhand and Chhattisgarh, as this opening would be detrimental to the forest-dwelling communities living in and around these coal mines. It interestingly makes no mention of the impact increased coal production will have on India’s climate change commitments.Footnote ²⁶ Forest-dwelling communities living near these coal mines have started to protest this move on the grounds of climate change. Thus, new developments are underway, and climate change concerns that are being mobilized from below will eventually make their way to the courts. Yet the strategic potential of the judiciary needs to be explored bearing in mind the limitations. As a result, I propose that the test cases brought before the courts reflect the complexity and the reality of climate change governance and policy in India, as opposed to cases that shy away from the nuance of climate change decision-making in India.

The now-familiar Black Lives Matter chant, ‘I can’t breathe’ brought me back to the small smoke-filled, apartheid-constructed village of my youth. Countless black children – in my village and others like it – developed respiratory problems as a direct consequence of their exposure to toxic pollution in their homes, which were placed near coal-fired factories as a result of apartheid planning. Some nights, as I struggle to breathe, I lie awake thinking about the inequality exacerbated by fossil fuel pollution, the harms generated by fossil fuel companies, and governments’ obligations to protect the right to a healthy environment. Though environmental degradation and climate change dramatically impact the lives of Indigenous and local communities throughout Africa, the connection between human rights, climate change, and the protection of ecosystems has only recently gained more widespread recognition. In this chapter, I will offer some reflections on several key climate cases in Africa that highlight local community struggles and how the lines established by precedent have been drawn in this issue area. This chapter will emphasize these developments in the context of the current planetary crisis, and it will conclude with some thoughts on where climate litigation in Africa will go from here.

21.1 Introduction: Simultaneous Crises Exacerbate Vulnerability

A confluence of crises – namely, the climate crisis, the current economic and health crises, systemic racism, and patriarchy – are rocking countries and communities around the world and generating massive turbulence. The COVID-19 pandemic, in particular, has dramatically exacerbated existing inequalities and injustices in Africa and around the world, including poverty, hunger, unemployment, disease and illness, conflict, and climate vulnerability. At the onset of the COVID-19 pandemic, the UN estimated that half a billion people, or 8 per cent of the global population, could have been pushed into destitution by the end of 2020.Footnote ¹ The World Food Programme predicted that the number of people facing hunger would double to over 250 million and the projected deaths due to hunger would rise to 30 million by the end of 2020.Footnote ² The International Labour Organization reported recently that 1.6 billion workers in the informal economy – nearly half of the world’s total workforce of 3.3 billion – ‘stand in immediate danger of having their livelihoods destroyed’.Footnote ³ All of this is occurring on top of existing vulnerabilities. Many communities in Africa, for example, are already vulnerable for a host of reasons, including the decimation of ecosystems and high levels of extractive activities. Moreover, the COVID-induced economic collapse around the world, including in Africa, raises the risk that future debt and conditional loans will sustain and accelerate the extractive economic model common throughout Africa. This will increase the threat to communities and to the planet.

The climate crisis, thus, overlaps with and exacerbates existing crises, with mutually reinforcing results. As the world has awoken to the existential threat posed by climate change, advocates have increasingly turned to litigation to spur action on climate change. In Africa, climate litigation is a key and developing strategy that is gaining increasing traction. Communities that have relied predominantly on organizing and resisting economic development projects that harm communities and the environment are now also exploring litigation as part of a broader strategy to secure their rights and the protect the environment in which they sustain themselves. Litigation provides communities with hope and inspires other communities to take action, though the implementation of court decisions remains a massive challenge. This chapter explores some of the precedent-setting climate cases in Africa.

21.2 Environmental Rights and Sustainable Development: Overview

The protection and promotion of human rights, including, in particular, environmental justice, on the African continent faces a number of challenges. Yet sustainable development is not possible without a rights-based approach that incorporates the right to a healthy environment and recognizes that climate change threatens human rights. Likewise, any approach to climate change mitigation and adaptation must incorporate a human rights–based approach.

Globally, the need for an environmental rights–based approach to sustainable development, founded on principles of equity, has received increasing attention. Nevertheless, substantial impediments continue to hamper the full development of this approach. Private and government actors are still at significant odds with environmental human rights activists, and threats made to the lives of environmental defenders continue to grow. Additional roadblocks include states’ corruption, ineffective institutional coordination, lack of policy coherence at the international and local levels, improper policy and legal implementation at the domestic level, and the ongoing and unprecedented rate of natural resource degradation and depletion.

The need to incorporate environmental rights into sustainable development discussions mirrors the need to broaden discussions of human rights to include the right to a clean and safe environment, the right to act to protect the environment, the right to information, and the right to participate in decision-making.

There is, moreover, a growing recognition that climate change is a human rights issue, given that climate change threatens people’s rights to life, natural resources, culture, basic social services, and development, particularly in developing countries. If business continues as usual and the global community continues to take grossly inadequate action on climate change, the unprecedented threat posed by climate change to human rights will only grow. Climate action must be prioritized.

Given the monumental threat to human rights posed by climate change, the approach adopted to address the climate emergency (now, more than ever) must be based on a global rights perspective that considers obligations, inequalities, and vulnerabilities and seeks to redress discriminatory practices and unjust distributions of power. This approach must address adaptation to the impacts of climate change as well as mitigation, as it is becoming increasingly clear that certain climate impacts are inevitable regardless of carbon emission reductions. Priority areas for climate adaptation include ecosystem-based adaptation, traditional knowledge, analysis and networking, and access to adaptation finance.

Integrating human rights into action and policies on climate change and empowering people to participate in policy formulation will help states promote sustainability and ensure the accountability of all duty-bearers. And yet achievement of these twin aims has been hampered by the fact that states have not made their adaptation and mitigation plans sufficiently available to the public. Successful rights-based climate change mitigation and adaptation efforts will depend on accurate and transparent measurements of greenhouse gas emissions and climate impacts, including human rights impacts.

21.3 Environmental and Human Rights: The African Context

In Africa, generally, environmental human rights at the regional level are defined by the poor management of resources, unequal access to and ownership of resources, weak environmental laws that are subject to manipulation by the executive, lack of implementation of these laws, inability to integrate legal obligations into public policies and programmes, and lack of state accountability in the use of natural resources and political power to frustrate environmental policies and programmes.

In addition, African states continue to deny people decision-making authority over their resources, marginalize pastoral and rural communities, and fail to acknowledge the role of women as environmental managers and/or include women in the conceptualization, development, and execution of programmes. This is in spite of the fact that domestic and international tribunals in the region have concluded that the failure to protect the environment may violate human rights and the collective rights of Indigenous people over their ancestral land and resources.

These specific challenges to a rights-based approach to environmental and climate management are compounded by structural features of African society. Patriarchy, for example, is deeply entrenched structurally and enforced. Women are burdened by unpaid care work, the costs of healthcare, unequal pay, and lack of access to the means of production. These disproportionate burdens are often entrenched through tradition and by state laws and practice. Indigenous communities, moreover, continue to struggle to reclaim their land or avoid expulsion from their land for the purpose of economic exploitation. Indigenous communities also continue to push for recognition for themselves and for the traditional knowledge they carry.

In Africa, much work needs to be done to integrate rights into environmental and climate frameworks. This work can’t wait, as this is no ordinary time. We are in the midst of the sixth mass extinction of life on Earth, which therefore necessitates bold, transformative cooperation and collective organizing to protect people’s rights, ecosystems, and the planet.

Communities in Africa have increasingly turned to courts as part of their strategy to stop rights violations and to protect their territories. They have also looked to international legal frameworks for relief. The next several sections explore certain relevant international legal frameworks and examine several African cases related to rights-based environmental and climate management.

21.4 Examples of Climate-Related Cases in Africa

21.5 Conclusion

These cases and a few others are beginning to set precedents that give hope to communities as they challenge and win battles against multinational corporations and governments. In the case of Baleni & Others v. Minister of Mineral Resources & Others, for example, the Pretoria High Court ruled in favour of the Xolobeni community. The High Court ruled that the Minister of Mineral Resources must obtain the full and formal consent of the Xolobeni community before granting mining rights.

Communities in Africa, like those throughout the rest of the world, are living through very uncertain times. Economies are collapsing, unemployment rates are skyrocketing, hunger is increasing exponentially, and the current droughts and anticipated cyclones continue to endanger communities. It is past time for transformed, people-centred solidarity economies that finally address this injustice and inequality.

Communities in Africa have, moreover, been inspired by climate litigation victories around the world, including more recently in Colombia, New Zealand, Pakistan, India, South Africa, Kenya, and the Netherlands, and the momentum for climate litigation is starting to grow across Africa.

Strategic climate litigation is one avenue communities can pursue to challenge corporations and governments. While it is time- and resource-intensive, it draws a line in the sand and helps create a barrier to stop rights violations and fossil fuel extraction. Each victory produces a ripple effect that reaches communities in Africa and the boardrooms of multinational companies. As communities become more aware of the law, they are better positioned to use it, shape it, and challenge it. Court victories, moreover, make a difference in people’s lives when attention is paid to implementation. Though times are uncertain, we can be sure that people, when equipped with the right tools, will stand up for their rights.

As the importance of human rights and a rights-based approach within climate and sustainable development discourse is increasingly recognized, climate litigation is more and more seen as a critical part of the strategy for climate action in Africa. As coal, oil, and gas extraction continues to be supported by financiers and facilitated by governments in Africa, communities are increasingly supported by human rights and environmental lawyers in Africa, with the knowledge that the tide will eventually turn. On the 8th of October 2021, the UN Human Rights Council adopted resolution 48/13 recognizing the right to a clean, healthy and sustainable environment as an international human right. This is a breath of fresh air for the environmental and human rights movement: the air we breathe, the food we eat, the water we drink, and our health, wellbeing, and survival all depend on a clean, healthy and sustainable environment.

Pakistan, a country of more than 215 million people,Footnote ¹ ranks high on the list of countries vulnerable to climate change.Footnote ² Its history of and experience with environmental law litigation provide many lessons; while there is reason to celebrate certain judicial developments, it is important that litigators and observers remain cognizant of the shortcomings of the approaches currently in vogue. This chapter discusses Pakistan’s experience with environmental and climate litigation while also commenting on the limitations of the current approaches.

22.1 Environmental Law Litigation in Pakistan: The Historical Context

Although legislation in Pakistan has contained environmental protection provisions for many years, it was not until the 1990s that Pakistan saw the emergence of far-reaching developments on environmental protection in the legislative and judicial spheres.

The Constitution of the Islamic Republic of Pakistan 1973 (‘the Constitution’)Footnote ³ has a separate chapter on judicially enforceable rights (dubbed ‘Fundamental Rights’)Footnote ⁴ that can be used to challenge executive action as well as legislation. The text of the Fundamental Rights, however, carries no express provision regarding any individual or collective right to environmental or climate protection. This gap was ultimately addressed through a judicially crafted process that began in the late 1980s and culminated in a major environmental law ruling in 1994.

Beginning in the late 1980s,Footnote ⁵ the Supreme Court of Pakistan opened the door to a new species of litigation called ‘public interest litigation’ or PIL.Footnote ⁶ Simply put, PIL is class action constitutional law litigation that does not require a class to come before the court – individuals can sue to address an issue relating to the ‘public interest’ and can identify a class being affected by the issues raised. Inspired by courts in India, PIL is characterized by relaxed standing/locus requirements for litigants approaching the court, the judicial use of a collaborative and non-adversarial approach to enforcing rights, and the liberal use of judicially created ‘commissions’ to gauge basic facts that are then used by the court to pass final judgment.Footnote ⁷ Courts use fact-finding commissions in PIL because the High Courts and the Supreme Court of Pakistan in their constitutional jurisdiction – traditionally, as a matter of practice – do not allow the presentation of evidence through, for example, witness examination in such proceedings since courts limit themselves to questions of law and not disputed issues of fact.Footnote ⁸

As a result of PIL, the Supreme Court and the High Courts have progressively read the Fundamental Rights chapter in expansive ways. These readings may seem curious if one adopts a textualist approach, but they have been justified in the name of aiding vulnerable citizens by expanding the scope of rights. Article 9, which guarantees that no person shall be deprived of life or liberty save in accordance with law, has received a very broad reading and has been interpreted to include a host of other rights, among them the right to a clean and healthy environment.

The 1994 Shehla Zia case, in particular, is now recognized as seminal.Footnote ⁹ A group of residents in the capital city of Islamabad approached the Supreme Court in its original constitutional jurisdictionFootnote ¹⁰ with a PIL asking the court to declare that the construction of a proposed electricity grid station should stop. The applicants supported their claim by arguing that the Water and Power Development Authority had carried out inadequate assessments of the effects of the proposed grid station on human health and the environment. The Supreme Court used the language of Article 9, which prohibits the state from depriving a person of life or liberty save in accordance with law, to impose a positive obligation on the state and establish that the ‘right to life’ in the Constitution included the right to a clean and healthy environment.Footnote ¹¹

Over the next few years, the Supreme Court’s approach was adopted by the High Courts too, as courts decided hundreds of cases where the petitioners’ main claim was the ‘right to a clean and healthy environment’. Many of these cases involved challenges by citizens to large-scale construction or development projects as well as challenges to the conversion of amenity plots or residential plots into commercial zones.Footnote ¹² In other cases, the grievances aired went beyond a particular locality and concerned entire cities, like when a lawyer filed a PIL challenging vehicular pollution in the capital of Pakistan’s largest province.Footnote ¹³ Other citizens challenged how the government disposed of solid waste.Footnote ¹⁴ Until 2015, the scope of PIL and the right to a clean and healthy environment was limited to cases similar to those identified above.

22.2 Climate Change: The New Challenge for PIL in Pakistan

In 2015, Asghar Leghari,Footnote ¹⁵ an agriculturalist and member of the Lahore High Court Bar Association, approached the Lahore High Court to complain of inaction by the state in fighting climate change. The scope of the petition was unlike any other brought before the court. Leghari based his claim on the Pakistani Ministry of Climate Change’s failure to implement the National Climate Change Policy, 2012 (‘the Policy’) and the Framework for Implementation of Climate Change Policy (2014–2030) (‘the Framework’). Since he had invoked PIL jurisdiction, the petitioner was not only arguing that there had been a violation of his own fundamental rights but also emphasized that the broader public had been denied its rights. Hence, this claim was not about a city-wide problem – it was about a global issue affecting all Pakistani citizens and people around the world.

In its own words, the court was motivated to act to protect the fundamental rights of the citizens of Pakistan, particularly those of the vulnerable and weak segments of society who are unable to approach the court themselves.Footnote ¹⁶

Soon after admitting the petition for regular hearing, the court set up a Climate Change Commission.Footnote ¹⁷ This twenty-one-member commission consisted of representatives of the federal and provincial governments, environmental experts, interest groups, and the petitioner’s counsel.

From September 2015 to January 2018, the Climate Change Commission acted, in the court’s own words, as ‘the driving force in sensitizing the [federal and provincial] governments and other stakeholders regarding gravity and importance of climate change’.Footnote ¹⁸

The Commission was tasked with ensuring the ‘effective implementation of the Policy and the Framework’.Footnote ¹⁹ While the case proceeded, the court received interim and supplemental reports from the Commission, which helped it gauge progress while also ensuring that all parties cooperated.

The Commission worked as a unit as well as in smaller working groups to achieve the goals identified under Priority Actions provided under the Framework and the Policy. As per the judicial record, the Commission, over a two-year period, helped achieve 66 per cent of the Framework’s Priority Actions.Footnote ²⁰ The Commission also helped design a framework for Climate Smart projects and a method to evaluate them.Footnote ²¹ It worked with a provincial government to develop a Draft Water Policy as well as a Draft Climate Change Policy.Footnote ²² The work of the Commission also led all relevant provincial departments to identify climate change focal points. Plans were also set in place to ensure that climate change concerns are reflected in future growth and development plans.

Another important aspect of the Leghari case was that the court kept it pending as a rolling mandamus or continuing review. This is important because there may not always be a clearly identifiable endpoint in climate litigation. A ‘rolling review’ or a continuing mandamus is, by no means, the norm in Pakistan. The last order in this case was passed in January 2018, which consigned the matter to the record instead of closing it as a finally adjudicated matter. With its last order, the court took another innovative step by setting up a six-member Standing Committee – composed of select members of the Commission – that can approach the court ‘for appropriate orders for enforcement of the fundamental rights of the people in the context of climate change, if and when required’.Footnote ²³

Also notable is the court’s recognition of environmental justice as distinct from climate change matters – perhaps no one could have predicted at the time of the Shehla Zia decision in 1994 that this would be the form that the jurisprudence would take. In the court’s own language, environmental justice ‘was largely localized and limited to our [national] ecosystems and biodiversity’.Footnote ²⁴ Climate justice, on the other hand, calls for a new approach that recognizes the shift ‘from a lineal local environmental issue to a more complex global problem’ where ‘the identity of the polluter is not clearly ascertainable and by and large falls outside the national jurisdiction’.Footnote ²⁵ Recognizing that countries face a choice between mitigation or adaptation, the court emphasized the importance of the latter.Footnote ²⁶

The court noted that climate change is not confined to ‘local geographic issues’.Footnote ²⁷ The court was emphatic that Pakistan faces immense challenges as a result of climate change, including, but not limited to, threats to the environment, ecology, economy, and society. Hence, the scope of PIL now covers what the court called climate justice.

Leghari is as seminal a case as Shehla Zia, which first opened the door to the use of PIL to protect the environment. There is no denying that the potential scope of future public interest litigation petitions has broadened.

22.3 The Limitations of Climate Change PIL

PIL in the High Court and the Supreme Court is high impact insofar as it grabs headlines and allows petitioners, activists, and arguably even judges to feel good about themselves; the high rhetoric of this type of PIL invokes the language of the Constitution while promising protections for the general public and criticizing state inaction. Yet this cannot be seen as a long-term sustainable panacea. Courts can open the door for litigants, but high rhetoric without substantive action cannot solve climate change issues that affect people on the ground. To the extent that courts encourage and aid this high rhetoric, while knowing that the state cannot fulfil the promises of this rhetoric, is unfortunate, to say the least. Constitutional courts tasked with deciding questions of law – and not fact – are not and cannot be the real or final battleground for climate change.

The Supreme Court and the High Courts have also been reluctant to appoint scientists as experts to assist them in climate change or even environmental law litigation. This is the unfortunate result of a common outlook according to which senior (almost always male) lawyers are seen as experts on all things related to environmental law and climate change. Scientific expertise is important not only because it lends credibility to court verdicts but also because it is necessary from a strategic perspective: if superior courts don’t use scientists as experts then this will, indeed already does, send a signal to lower forums acting as triers of fact that they do not need to appoint scientists as experts either. In a system where powerful individuals and corporations hire the most expensive lawyers and experts to defend them before the courts that conduct trials of first instance, the courts of magistrates and the environmental tribunal lack capacity and expertise. Superior courts can help these lower courts hold wrongdoers accountable by encouraging them to appoint scientists as experts. If triers of fact, such as statutory tribunals vested with the authority to decide questions of fact, remain ineffective, climate change litigation will continue to suffer a big setback. Superior courts, as well as tribunals exercising statutory jurisdiction, will need to acknowledge that their own expertise in the science involved in climate change litigation can be limited and, as a result, they will need to be more open to appointing climate change experts (i.e., scientists) – not just lawyers – to ensure that solutions are viable and have purchase across the board.

The High Courts, apart from the constitutional jurisdiction in which they hear PIL matters, also exercise appellate jurisdiction and hear statutory appeals of specific fact-based questions under the Environmental Protection Act 1997. The treatment of statutory appeals and the time they take to be resolved is vastly different from the high-profile indulgence granted to claims lodged in the courts’ constitutional (as opposed to appellate) jurisdiction.Footnote ²⁸ This is troubling and must be addressed by the High Courts that hear appeals from decisions of the lower forum, that is, the Environmental Tribunal. While specific fact-based questions involving liability of individual parties might be less glamorous compared to constitutional law questions involving lofty promises, individuals, and entities contributing to climate change can only be held accountable after detailed evidence is examined and courts rule on the issues involved. It will hurt the courts’ legitimacy if they cannot counter the perception that they are slow to address statutory appeals in environmental law; the meaty cases where issues of fact, evidence and specific liability are involved. This is of course as opposed to PIL jurisprudence that, in the eyes of many, is used to lift the public perception of courts while trying to make the executive look inept.

There is no denying that the executive in Pakistan has yawning gaps in what it promises and what it can deliver – but is judicial activism the answer? If every instance of executive action (or even inaction) is mired in litigation flowing from PIL, it will damage policymaking and fair accountability and is likely to result in the executive perpetually second guessing itself. Courts should therefore steer clear of policymaking – celebrating judicial activism is more likely to hurt rather than promote democratic accountability.

There is no doubt about the gains that are possible when courts are seen as a platform that facilitates dialogue between the state and its citizenry.Footnote ²⁹ However, activists also need to remember that direct engagement with the executive as opposed to simply filing constitutional petitions is more likely to be a strong bet for meaningful change. For instance, Pakistan passed the Climate Change Act in the year 2017, which envisages a Climate Change CouncilFootnote ³⁰ as well as a Climate Change Authority.Footnote ³¹ The two bodies are tasked with ensuring that the country has, among other things, policies regarding adaptation as well as mitigation. The substance of these policies has still not been shared with the public – even if such policies exist in some bureaucrat’s locked drawer. It goes without saying that, in developing the substance of these policies, activist citizens will need to work with the government instead of asking courts to fill in the gaps. While courts can indeed direct that the relevant meetings of the forums identified by Climate Change Act 2017 take place, the activist citizens will need to do the non-glamorous job of working with the government to ensure that policies meet the needs of the vulnerable communities; unlike high-profile constitutional cases, this is non-glamorous work, but it is necessary for long-term sustainability.

Activist litigators appearing for vulnerable communities and rights groups face two major challenges. One is the extreme reluctance of courts in Pakistan to recognize the law of tort, hence rendering next to impossible lawsuits filed against powerful corporations in the hope of recovering tortious damages. In a world in which corporations exert enormous power, muscle, and footprint, activist litigators need to band together to ensure that corporations feel the heat. Although the Punjab Environmental Protection Act 1997Footnote ³² envisages the payment of compensation to victims and also talks about sums to be paid by a wrongdoer to restore the environment to its state prior to damage, these provisions are rarely enforced. Powerful actors accused of wrongdoing use delays endemic to the justice system to defeat the letter and the spirit of these provisions. This is one area where activist litigators must push courts to start enforcing the law without delay. The second challenge stems from the nature of PIL; it only allows state action or inaction to be questioned by the High Courts and the Supreme Court. Activist litigators, in order to hold corporations accountable, will therefore, as one option, need to convince the High Courts and Supreme Court to read the Constitution broadly enough to subject private parties to PIL.Footnote ³³ There cannot, however, be long-term accountability for corporations unless environmental tribunals increase their capacity and expertise and start enforcing provisions that allow corporations to be fined or required to pay compensation to victims.

Empowering institutions (just like communities) needs to be at the top of Pakistan’s reform agenda. The institutions that are in dire need of reform include the executive-controlled environmental protection agencies in provinces and the federal capital and forums (such as magistrates’ courts and environmental tribunals) that try issues of fact related to environmental and climate change matters. It is imperative that Pakistan’s institutions – as well as those approaching these institutions – recognize that the challenges they face will only become more formidable in the coming years. In order to change things for the better, the shortcomings of current approaches to climate and environmental litigation must be acknowledged.