Climate litigation is on the rise in the world. Activists have found in the courts a way to try to get administrations to be more ambitious in the fight against climate change, to point out the most polluting companies or to stop fossil fuel projects that further fuel this crisis. The total number of cases worldwide has increased from 884 in 2017 to 2,180 in 2022, according to the latest report on climate litigation prepared by the United Nations Environment Programme. The United States heads the list of nations with the most cases filed, but these lawsuits have been expanding to the rest of the countries for years. And by international courts such as the European Court of Human Rights (ECHR), where there are several open cases, such as that of the six young Portuguese people who have sued 32 countries. Ana Barreira (XX years old) is a lawyer and the founding director of the International Institute of Law and Environment (IIDMA), an organization created in 1997 that uses law to promote environmental protection.
Ask. What types of climate litigation exist?
Answer. There are many typologies. The best known, and those that attract the most media attention, are those that are directed against States and are promoted by citizens who demand greater climate ambition from their governments. But there are also those against companies. In Europe, some of this type have already been produced, but where they have occurred the most is in the United States. Climate litigation can also be considered one that is filed, for example, against the construction of a coal-fired thermal power plant or a combined cycle power plant, because they expel greenhouse gases. In Spain we would no longer find the case of a coal plant, because it is something that is already completely disappearing, but in many other countries in the world they continue to be built. Others may be those lawsuits that have to do with the lack of application of the environmental impact assessment in a project that may generate more emissions, as happened in the extension of one of the runways at Heathrow airport. That is, the typology is multiple and the arguments that can be used are also multiple.
Q. Does environmental and climate activism have a long history in the courts?
A. The first recorded climate litigation took place in the 1990s and was a case in Australia against the construction of a coal-fired power plant, but then there have been more and more cases as the legislation on combating this has been developed. against climate change. Above all, after the signing of the United Nations Framework Convention on Climate Change in 1992. If we look at the statistics, the place where there is the most climate litigation is in the United States. This is related, on the one hand, to the fact that very little has actually been done in the United States to combat climate change. And on the other hand, it is because it has a very different judicial system where precedents must be established, which are the primary source of law, compared to civil law systems, such as the one we have in Spain or in many countries of the European Union. and Latin America, where the first source of law is the law.
Q. Do you think litigation has been a useful tool so far?
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A. I believe that all tools to confront climate change are useful. Until now there have been cases that have served to promote this fight, although others have not been useful. There are cases that have set a precedent or that have attracted a lot of attention, such as the famous Urgenda case in the Netherlands, which was based on arguments more or less similar to those of the Juliana case in the United States. But there have also been very previous lawsuits. interesting but to which the media did not pay attention. Now the argument of defending future generations is widely used, but in 1994 there was a paradigmatic case in the Philippines in which this reasoning was already used against plans that involved deforestation, which is related to climate change because it slows down absorption. of carbon dioxide. And in that case, the concept defended by the Brundtland commission of meeting the needs of the present without compromising the needs of future generations was used for the first time. It was a case brought about by some children in the Philippines. Perhaps if attention had been paid to it, as in the Urgenda case, it would have had much more social impact and in more countries.
Q. Do you think judges are now more sensitive to these types of climate cases in which the rights of future generations are defended?
A. Talking about judges in general is very complicated, because it depends on the jurisdictions, judicial traditions and also the training of the judiciary in each country. There are countries in which there are courts specialized in environmental issues, something that, for example, in Spain we do not have. But judges are also citizens and today there is greater awareness in society than 10 or 20 years ago. Now, when analyzing a case, it is seen differently. This influences, because, although the law must be applied, there is a level of subjectivity. That is why I believe that there is greater receptivity, and this is transferred to the sentences.
Q. And have you noticed this change at your institute?
A. In our work in Spain we noticed improvements, but very limited and in some areas. It also depends on the case you bring before the courts, because there are rules that are very simple to understand but there are others that are highly technically complex and, sometimes, I think the argument is not well understood by the judiciary. There are exceptions, obviously, but the problem is that there is no good training, the judiciary has not been trained in just these matters. Just as there is, for example, a prosecutor’s office specialized in environmental matters and courts aimed at other matters, we believe that it is necessary to create specific chambers or judges for the environment, just as there are in matters of gender or minors.
Q. On September 27, the European Court of Human Rights will hold a hearing in the case of the six young Portuguese people who accuse 32 countries of inaction on climate change. What does it mean that the litigation has reached this court?
A. The lawsuit was filed in 2020, before the European Union and many States reviewed their climate commitments and now we are in a very different situation. I don’t know what’s going to happen, but I think it’s important. Just the fact that it reaches the court causes media coverage, and that creates awareness. This is part of what is called strategic litigation and is widely used in the Anglo-Saxon system. Sometimes, there are people who file a lawsuit knowing in advance that they are not going to win, but they do it to attract attention, to put on the table a problem that needs to be urgently addressed.
Q. The litigation is more important than the sentence…
A. I don’t have a crystal ball to know what the court will decide. But if you do not testify in favor of the litigants, this entire process drives changes in the legislation.
Q. It is striking that this case has reached the ECtHR when the right to the environment is not included in the Human Rights Convention.
A. The European Convention on Human Rights was signed in the 1950s, when society was not the same as it is now. The environment was not something that society was concerned about and there has been an evolution. The convention includes what are called first and second generation human rights, but third generation rights, which are diffuse in nature, are not included. As a consequence of the process of environmental degradation and its impact on other rights, recognition of the right to a healthy environment has begun to be introduced into many national constitutions since the 1970s. Even in other regional treaties for the protection of human rights it is also included. In Europe, a reform has not been carried out yet, but I believe that it will surely occur, also as a consequence of the recognition of the right to a healthy environment by the UN General Assembly.
Q. In Spain, the first climate litigation against the State has ended up being rejected by the Supreme Court. Do you think a lawsuit could succeed that condemns the country to present more ambitious emissions cutting plans?
A. We have already seen that the lawsuit has been dismissed. I don’t think it’s possible right now. Furthermore, the European Union, which largely sets climate policy for Spain, is going to increase its commitments. I, who have seen all the European development, think that the EU is very ambitious. It has always been a leader in the fight against climate change and, in fact, in the negotiations of the United Nations Framework Convention on Climate Change it was the one that put on the table setting emissions reduction targets, but no one else wanted to. Many things are being done in Europe, such as changes in legislation, renewables, construction… We pay a lot of attention to the macro, but not to the micro and all the transformations that are being generated. I have spent my entire professional life focused on these issues and I consider that for 20 years hardly anything happened, everything was very slow, but since the signing of the Paris Agreement in 2015, all the changes that are taking place are incredible. Obviously, much more progress has to be made, I do not deny it.
Q. Going down to the micro. Could there be a lawsuit against a mayor for eliminating bike lanes, as is happening after the municipal elections in some town councils?
A. I think it could have a way because it means adopting measures to hinder sustainable mobility, which is a very important element to confront climate change, because cities contribute a lot with their emissions to global warming.
Q. Another very striking case is that of low-emission zones. How is such a massive non-compliance with the Climate Change Law possible by mayors who have not implemented these zones?
A. There are many breaches of many laws and then nothing happens. This is precisely what the courts are for. Although the first thing to comply with the laws is to provide the Administrations with the means.
Q. There is a line of European aid for town councils to launch these areas.
A. Of course, that is why there is no logical or reasonable justification for this not having been done. In this case, there is a breach of a law and you can go to court.
Q. Although then the courts can decide things like the elimination of a superblock in Barcelona, something difficult to understand for many of those who live there.
A. It is very important to train the judiciary on these issues. Furthermore, right now in Spain we have a worrying situation because everything is excessively politicized. There is talk in the media about the politicization of the judiciary, but we have high levels of politicization in everything.
Q. Even bike lanes are politicized.
A. Yes it can be an example… In many countries around us they are used and in China and in many places. In addition, they have environmental advantages, but also that the population moves by bicycle is beneficial for health. And that can even have a positive impact on health costs, due to the lower incidence of some diseases. Many times we do not see the issues in a systemic way and we forget the interrelationships that exist.
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