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Climate litigation: citizens as new guardians of the environment

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By Flavia Vulpiani

· 5 min read

On September 13, 2023, the third court hearing of the dispute promoted by the "A Sud" association took place before the civil court of Rome.

The association, which has been engaged in environmental protection for years, launched the "Giudizio Universale" campaign.

With "Giudizio Universale," the "A Sud" association, along with 24 other associations, 161 individuals, and 17 minors, filed a lawsuit accusing the Italian government of climate non-compliance with international agreements and insufficient commitment to adopting adequate strategies for reducing emissions.

This campaign is part of a broader phenomenon known as climate change litigation, particularly within the realm of strategic litigation.

But what is this phenomenon and why is it becoming more prevalent in courtrooms worldwide?

Challenges for legal systems

Finding an appropriate response to climate change is an unprecedented global challenge, especially for legal systems.

In a constantly evolving environment, legal systems are forced to address the urgent climate crisis while balancing inevitable measures with other competing interests.

Due to this complexity, legal responses have been discordant and inadequate so far: states are bound by agreements they do not fully comply with, and the international system lacks measures to hold states accountable for their commitments.

Citizens as guardians

In this diverse scenario, litigants, often with the assistance of environmental organizations, have filled the void of state accountability, assuming the role of "guardians”.

States are called upon to answer for their failures in court, and this "oversight" by judges is made possible through the tool of climate change litigation.

This type of litigation is now widespread in courtrooms worldwide (you can consult a list of cases through the Sabin Center at Columbia University), from east to west, tasking judges with the duty of protecting the environment, citizens, and future generations.

The genesis of climate litigation

The phenomenon of climate change litigation originated in the United States, where the number of such cases is high, thanks to increasing awareness and a transition towards an ecocentric perspective.

The case of Juliana v. United States was pivotal, where a group of twenty-one young individuals sued the United States to demand both recognition of fundamental rights violations and a mandate to develop a plan for the progressive reduction and elimination of CO2 and fossil fuels.

Unfortunately, the request was rejected by the Ninth Circuit Court of Appeals due to lack of standing.

European climate litigation

The phenomenon then spread to Europe, where litigants based their actions not only on each member state's domestic laws but also on many international sources related to environmental matters, such as the crucial Paris Agreement and the European Convention on Human Rights (CEDU).

The Dutch Urgenda case is emblematic and paved the way for the introduction of climate change litigation in Europe.

It originated from a lawsuit filed in November 2013 by the Urgenda Foundation against the Kingdom of the Netherlands and the Government.

The Urgenda Foundation sought recognition of the state's wrongful conduct and wanted a condemnation to implement measures to limit emissions.

The case concluded in 2019 with a conviction of the state.

Other cases of climate change litigation against states have occurred in Europe over the years, such as the French case Affaire du Siècle which ended in 2021 with a favorable judgment from the Administrative Tribunal of Paris, or the German case Neubauer, which concluded with a historic ruling by the German Constitutional Court.

Especially in the German case, Neubauer v. Germany, fundamental aspects of environmental protection and the right to live in a climatically healthy world where individuals can fully enjoy their rights come to the forefront.

The Bundesverfassungsgericht recognizes that if serious action is not taken to protect the environment, it will be necessary for a Vollbremsung, to "pull the emergency brake", in the near future, inevitably resulting in significant restrictions on the rights of not only future generations but also current ones engaged in the frontlines of the fight against climate change.

The bright and dark sides of climate litigation

Through this new form of environmental activism, law and science cooperate in defense of the environment.

However, this type of activism, despite its virtues and multiple positive aspects such as direct citizen involvement in environmental issues, presents several problematic aspects.

From the non-uniform legal concept of "future generations" that varies from one legal system to another to the requirements for legal action and many other issues, two closely related problems stand out: the role of judges and the deresponsibilization and inactivity of political decision-makers.

Role of judges and political inactivity

When citizens turn to the courts, they delegate to the judges an activity that should theoretically, according to the historical separation of powers, be the duty of the states.

In fact, the targets that judges are called upon to approve should have been introduced by the states long before. Although the responses of the judges are a positive sign for environmental protection, they still find themselves assuming a role that is not inherently theirs, and the inactivity of the states in legislating creates numerous problems.

The Italian case we started with, "Giudizio Universale", is an illustration of this.

Despite the fact that climate change is devastating our lands (such as floods in Northern Italy and droughts being just a few examples), the Italian government does not take concrete action and continues to adopt initiatives that contradict environmental protection.

This leaves the responsibility to act on citizens and, consequently, on the judges.

The Italian case and… a question!

In the civil court of Rome, another piece was added to the puzzle. Within a few months, if the judge does not deem further information necessary, there will be a verdict that will either convict or acquit the Italian state.

But can we consider it a true step toward fighting climate change as long as the impetus continues to come solely from citizens and not from the political class?

Future Thought Leaders is a democratic space presenting the thoughts and opinions of rising Sustainability & Energy writers, their opinions do not necessarily represent those of illuminem.

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About the author

Flavia Vulpiani is a legal specialist with a focus on strategic climate disputes. She is currently working at Enel and graduated from the Sapienza University of Rome with a law degree.

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