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On September 15, 2024, the Decree reforming the Constitution of the Judiciary was published in the Official Gazette of the Federation. This reform has generated concern among those who advocate for environmental protection in Mexico. One of the most controversial points is the relaxation of the processes for electing judges and magistrates.

 

Last December, the Montana Supreme Court upheld a district court ruling that state actions allowing the continuation of a fossil fuel-based energy system violate the constitutional right to a clean and healthy environment, particularly for young people. In a 6-1 decision, the high court determined that Montana’s constitutional guarantee of the right to a healthy environment includes a “stable climate.”

The landmark ruling is part of the country's first constitutional trial on climate change.
In it, a group of 16 young people—represented by Our Children's Trust and the Western
Environmental Law Center argued that the State was violating its constitutional right to a
a healthy environment by promoting the fossil fuel industry and exacerbating the effects
of the climate crisis. “This ruling is a victory not only for us, but for everyone
“Young people whose future is threatened by climate change,” Rikki said in a statement.
Held, plaintiff in the case.

The Supreme Court also ruled that state laws prohibiting
take into account greenhouse gas emissions or climate impacts in the
decisions on permits for the fossil industry, as well as those that prevent the
constitutional resources in the courts.

“This ruling clarifies that the Constitution establishes a clear directive for Montana
reduce its greenhouse gas emissions, which are among the highest in the
country per capita, and to make the transition to a future of clean and renewable energy,”
“ declared Melissa Hornbein, an attorney with the Western Environmental Law Center, in a statement.

 

More information here and here .

 

 

About two hours from Santiago, the capital of Chile, lies the bay of Quintero and Puchuncaví, with just over 40,000 inhabitants. The area had the potential to be a wonderful place to live—with its rich agriculture and bountiful sea—offering artisanal fishing and opportunities to develop tourism. But these ways of life were sacrificed to the relentless advance of intensive industrial activity. Today, more than 30 different companies, many highly polluting, operate there, making it a dangerous place to live.

 

Mass poisonings of adults and young people are common in the bay , often resulting in hospitalization. Coal spills on the beaches, staining the sand, are also frequent. In 2022 alone, over 100 such incidents were recorded . While not officially documented, there is even more chilling evidence of the dire situation of the local population. Many children require specialized education due to developmental or learning difficulties, and nearly every resident has a loved one suffering from cancer or other illnesses linked to pollution exposure.

 

The situation disproportionately affects children, who are especially vulnerable to pollution. The impact on women is also significant, as they are often forced to leave their jobs to care for sick family members.

 

The effects of the energy transition

 

The energy transition process in Chile is part of the context of what is happening in the bay. For many years, the country obtained more than 50% of its energy from coal-fired power plants. But that is changing, as dependence on fossil fuels (which Chile must import) is giving way to the use of solar, wind, and other renewable energy sources.

 

All of this has direct consequences for the area. Following the Decarbonization Plan implemented by the government in 2019, two of the four AES Andes thermoelectric plants operating in the bay were shut down. But what will happen to the other two that still don't have a closure date? And what about the environmental damage left behind by those that have already closed? It's time to talk about restoring the area to achieve justice for the region.

 

The uprising of the communities

 

In 2016, a group of people, supported by the environmental advocacy organization Environmental Defense, filed a lawsuit for environmental damage against the government and all the companies operating in the area. Only this year, seven years later, did the legal process culminate in a verdict. This long-awaited decision will be a turning point in the lives of all those who bravely stood up to bring to light the injustice they have suffered.

 

Meanwhile, in 2019, the Supreme Court resolved several legal appeals for protection following mass poisoning incidents, ruling in favor of the communities and issuing a landmark ruling —perhaps the most important environmental decision in Chile. The ruling orders the State to implement 15 measures to identify the sources of contamination and remediate the environmental damage in the area. Sadly, the ruling has not yet been properly implemented.

 

Continuing with the progress, the Supreme Court recently issued three rulings addressing the non-compliance with the 2019 judgment and providing tools to enforce it. But much remains to be done.

 

So what now?

 

The Quintero-Puchuncaví case and the numerous lawsuits that have arisen in the area demonstrate the importance of law and litigation as tools for people to access justice. Strategic litigation, whether climate-related or environmental, is not easy and is not always the best available option for achieving a goal. In fact, it is a costly option that requires time and dedication.

 

But it is also a key tool for advancing justice. Specifically, it allows communities to bring their demands to formal decision-making forums. In the case of Quintero and Puchuncaví, the Supreme Court has repeatedly recognized the environmental problem and human rights violations affecting the area and has ordered the State to take urgent measures to correct the situation. Faced with a lack of ambition, or the direct violation of rights by States or companies, it has been the courts, at the request of those affected, that have compelled the government to take a stand on the side of responsibility.

 

Justice will come, if we give it the chance.

 

The town of Quintero and Puchuncaví deserves the opportunity to shine again and reach its full potential as a colorful coastal town and resort rich in natural resources.

 

The injustice inflicted upon the territory and its inhabitants must be acknowledged, establishing mechanisms for redress, ensuring non-repetition, and involving local people in the area's environmental recovery. It is also crucial that the energy transition be closely monitored to ensure it is not only a transition, but a just one.

 

All of this can be supported by the use of national and international law and litigation. Thus, as a civil society organization specializing in the use of law and litigation, AIDA will continue to be part of the tremendous multidisciplinary effort needed to help communities regain their agency—the power to decide and participate in the decisions that affect them, a power that was taken from them so many years ago.

 

Text written by Florencia Ortúzar Greene, director of the Climate Program of the Inter-American Association for Environmental Defense (AIDA)

 

 

According to a report recently published by the United Nations Environment Programme (UNEP), climate litigation has doubled in recent years worldwide, establishing itself as a key, increasingly used tool to combat the climate crisis.

 

Moreover, the Intergovernmental Panel on Climate Change (IPCC) stated in its sixth report that there is now “growing academic agreement that climate litigation has become a powerful force in climate governance.”

 

Climate litigation has truly become a permanent fixture in the toolbox used by activists to promote climate action. And it is children, youth, Indigenous peoples, civil society organizations, women, and local communities who have taken the lead in filing these lawsuits.

 

Climate litigation is inherently strategic , meaning it seeks broad societal changes that extend beyond a single case. This is typically achieved by advocating for the protection of rights or changes in public policy.

 

Thus, these lawsuits have served to hold governments, authorities, companies and other non-state actors accountable for the climate crisis before the courts, forcing them —among other things— to adopt, implement and progressively increase concrete measures to curb their emissions and mitigate the impacts of the climate crisis.

 

Just over a year ago, AIDA launched the Climate Litigation Platform for Latin America and the Caribbean , a website that compiles many of the region's climate litigation cases. The goal behind this initiative is to promote the exchange of diverse experiences to strengthen cases in support of the structural changes that are needed.

 

The Platform contains systematized and up-to-date information on legal actions filed before any jurisdictional authority (judicial, administrative, international, or autonomous). It includes the arguments supporting the cases, relating to the legal obligations of States and other actors in the face of the climate crisis.

 

But the Platform also includes cases that, while not directly related to the climate crisis, contribute to the search for climate justice on the continent.

 

And that's where the confusion arises and the question is born: What makes a dispute be considered climate-related?

 

The truth is, there's no universally accepted definition that allows us to distinguish between climate-related and non-climate-related disputes. It's a relatively new niche within environmental law, and like many things in life, its boundaries are blurred. Our planet is currently suffering from multiple crises, all interconnected and closely linked to environmental degradation. In this sense, it's almost always possible to connect environmental disputes, in one way or another, to climate change.

 

In any case, and with the aim of proposing a discussion on the matter, we dare to reflect here on possible definitions that will give us light and allow us to outline this concept that is gaining so much relevance.

 

An approach to the concept of climate litigation and its elements

 

One way to address the issue of what makes a lawsuit climate-related is to say that climate litigation is any litigation that contains arguments related to the climate crisis in its claim or in the judgment that resolves it.

 

Another approach relates to the objective of the litigation. Climate litigation can be defined as any litigation with an objective related to climate action. This implies a high degree of complexity and a significant variety of cases, many of which are intertwined. Thus, under this definition, cases such as the following would fall into this category:

 

- They seek to mitigate the polluting emissions that are causing global warming;

- They demand compliance (or an increase) by States with their international climate commitments;

- They promote adaptation measures to the inevitable effects of the climate crisis;

- They demand reparations for damages caused by the climate crisis;

- their aim is to hold companies accountable for their role in the problem;

- pursue regulatory or policy changes in favor of climate action;

- They demand transparency or accountability for government or corporate actions related to the climate crisis;

- They are asking financial institutions to raise their standards so that they take climate and the environment into account in their decisions;

- They seek to stop any project that could be harmful to the climate;

- their purpose is to protect ecosystems, especially those that function as natural carbon sinks;

- on some occasions, they seek to increase public awareness of the problems related to the climate crisis.

 

A living and constantly growing tool

 

As you can see, the variety of cases that can be labeled as climate litigation is enormous, almost as wide as the creativity of the people who are putting the tool to use.

 

Interestingly, despite being a relatively new concept, climate litigation is self-reinforcing. The more we use it, the more we put the courts to work examining the obligations of companies and states in support of climate action, the more we will generate jurisprudence, capabilities, and useful experience to continue moving forward.

 

National and international law is strengthened through the use of climate litigation, and it is important to keep it alive and constantly growing, as well as linking it to the responsibility that States and companies have to address the climate crisis, based on the universal human right to a healthy environment.

 

It's important to clarify that strategic litigation—whether climate-related or environmental—is difficult, complex, and costly. It requires time, resources, expertise, and dedication. Initiating climate litigation is not an easy decision to be taken lightly. Often, it's not the best option for achieving a specific objective.

 

But we can say with certainty that it is a key tool in climate action, one that has allowed the voices of highly vulnerable people and groups, often rendered invisible, to be heard in the forums where decisions are made and justice is served. It is also the final recourse in the institutional and legal arena.

 

Text written by Florencia Ortúzar Greene - director of the Climate Program of the Inter-American Association for Environmental Defense (AIDA)

 

 

The Paris Agreement, in force since 2016, was emblematic for having set a common goal for the 195 countries that signed it, facilitating the union of efforts at the international level to deal with climate change, something that had not been achieved until then.

 

To achieve the famous goal — of “ensuring that the increase in the global average temperature remains well below 2°C, preferably to 1.5°C, compared with pre-industrial levels” — Nationally Determined Contributions, or NDCs, were created. These documents, which must be submitted to the Secretariat of the United Nations Framework Convention on Climate Change (UNFCCC), contain each country's commitments to address the climate crisis. In them, countries freely declare, according to their circumstances, how they will reduce their greenhouse gas (GHG) emissions and how they will advance adaptation to the climate crisis.

 

The NDCs were first submitted in 2015, when the Paris Agreement was adopted, and since then they have been required to be updated every five years, with increasingly ambitious targets. The first update of these commitments occurred in 2020, and in 2025, countries must submit a new update of their NDCs, with targets for 2030 and 2035. This means we could see a significant number of updated commitments from all UNFCCC member countries (at least, that's what we expect), which opens up a range of opportunities for those seeking to promote greater ambition, as well as more and better climate action.

 

Taking advantage of the NDC update

 

Updating the NDCs presents an opportunity to drive more ambitious and effective climate action. On the one hand, the development of these updates must include participatory processes that allow people to be part of the country's proposed goals, incorporating key elements to raise ambition and ensure that climate actions are implementable and effective (although few countries manage to guarantee acceptable standards of participation).

 

In the case of AIDA, for example, we are always concerned with promoting the importance of designing climate action that respects nature and human rights, especially those of people and communities in vulnerable situations, and that incorporates a gender and intersectional perspective. This last point is crucial to ensuring a balanced distribution of burdens and benefits among the different people who make up societies and also to ensuring that women and historically excluded groups contribute their knowledge and experiences to the design of solutions. These participatory processes vary from country to country, and although they are often inadequate, it is worth paying attention to the possibilities they offer.

 

On the other hand, updated and published NDCs serve as instruments of pressure, as they contain commitments that countries undertake under the Paris Agreement, which, in the realm of international law, is legally binding , especially when the signatory countries recognize the binding nature of this instrument in their domestic legislation. This means that, as representatives of civil society, we can monitor what the country is doing in relation to what it has promised, evaluate its performance, and demand accountability from our governments.

 

Along these lines arises the possibility of litigating based on these NDCs, something that has been happening recently in some countries in the region and in the world, with interesting results.

 

The possibility of litigation, based on the NDCs

 

The region has already witnessed a couple of lawsuits based on NDCs. In one of them, filed in Mexico in 2021, Greenpeace brought a constitutional action against various Mexican authorities for the drafting and approval of the country's NDC, updated to 2020. The case was based on the claim that the right to a healthy environment and the principle of progressivity were being violated due to the lack of ambition in the commitments. The court handling the case denied the injunction, arguing that the plaintiff had failed to demonstrate that the NDC violated the right in question. However, after multiple advocacy efforts by civil society organizations (see here and here for the civil society calls to action), the Mexican government submitted an updated NDC with higher GHG mitigation targets.

 

Meanwhile, in Brazil that same year, six activists representing two organizations filed a class-action lawsuit against the government for updating its Nationally Determined Contributions (NDCs) in 2020, which reduced, rather than increased, the country's ambition. In their lawsuit, they requested the suspension of the NDC's effects and its alignment with the progressivity requirement of the Paris Agreement. While awaiting a resolution to the case, the Brazilian government submitted a new update to its NDCs in 2023 that merely reaffirmed the commitments made in its initial NDC. The world's attention will be focused on Brazil's next NDC update.

 

The possibility of litigating based on the NDCs opens an interesting opportunity to leverage the Paris Agreement and demand more and better climate action. If this new round of updates fails to meet the necessary ambition to address the climate crisis, our environmental courts will be called upon to respond to the demands of civil society, which, through strategic litigation, will seek to establish precedents that will further strengthen the tool of climate litigation.

 

Meanwhile, stay informed of all the latest developments in this type of litigation in the region on the Climate Litigation Platform for Latin America and the Caribbean , where you will find information about many of the cases that are challenging authorities and corporations to take responsibility and contribute to solving the climate crisis.

 

Text written by Florencia Ortúzar Greene - director of the Climate Program of the Inter-American Association for Environmental Defense (AIDA)

  

 

*Check out this blog with basic information about the NDCs and what the upcoming 2025 update process means.

 

**To learn more about the progress of each country's climate commitments, you can visit the UNFCCC website, which has a database of countries that have submitted their NDCs and the date they did so.

 

***Also check out the Climate Action Tracker project , which tracks government climate action by comparing countries' policies and NDCs with the goals of the Paris Agreement

 

****Finally, we recommend NDC LAC , a digital tool that provides information on the progress in the implementation and updating of NDCs in Latin America and the Caribbean.