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Rising sea levels, flooding, and severe storms in the Torres Strait have led two residents of Australia's Boigu and Saibai islands to take legal action to protect their communities from climate change. The plaintiffs argue that their homes could disappear as sea levels rise, making the islanders the country's first climate refugees.

 

These communities, along with their culture, are at risk of disappearing because they are located in extremely low-lying areas. According to scientific data, sea levels are rising in the Torres Strait, which separates Australia from New Guinea, at twice the global rate. “Becoming climate refugees means losing everything: our homes, our culture, our stories, and our identity. If that is taken from us, we don't know who we are. We have a cultural responsibility to ensure that this doesn't happen and to protect the country, our communities, our culture, and our spirituality from climate change,” said Paul Kabai, one of the plaintiffs.

 

Links to more information at: https://australianclimatecase.org.au/ and

https://www.sbs.com.au/language/spanish/es/article/por-que-los-islenos-del-estrecho-de-torres-presentan-una-demanda-contra-el-gobierno-australiano/uhvme13jo

 

 

The European Union intends to implement a taxonomy that classifies activities related to nuclear energy and fossil gas as environmentally sustainable economic activities. In Mexico, Agreement A/018/2023 of the Energy Regulatory Commission seeks to classify a portion of the electricity generated by combined-cycle fossil gas power plants as clean energy.

 

Environmental organizations have begun filing lawsuits against these regulations because they contradict The “urgency” of transitioning to renewable and clean energy to curb the climate crisis. Labeling fossil gas as sustainable is a regressive measure and contrary to the Paris Agreement. The use of this fossil fuel releases high quantities of carbon dioxide and methane. Implementing regulations that promote gas threatens to worsen the climate crisis.

 

More information at: EU Taxonomy: Supplementary Delegated Act on Climate to accelerate decarbonization (europa.eu)

Austria argues that nuclear and gas are 'green' investments (rtve.es)

 

 

When the world was going through a health crisis and COVID-19 was forcing us to distance ourselves from everything and everyone, I came across the Climate Litigation Community of Practice in Latin America. Around that time in 2020, I was an external collaborator with Greenpeace Mexico and I was fortunate enough to meet Javier, Florencia, and Verónica, the hosts of this nascent community, who had been working at AIDA .

 

The community facilitated various virtual meetings to exchange ideas about climate litigation with people from across the region concerned about the environment, the climate crisis, and the health of the planet and living beings.

 

We confirmed shared concerns and demonstrated how, from each trench, we faced environmental and social crises through strategic climate litigation.

 

While some people litigated against deforestation, coal mines and thermoelectric plants, or for the inclusion of climate change variables in environmental impact studies; others sought to stop policies aimed at the use of fossil fuels or the improvement and compliance with national climate commitments.

 

It was interesting to see the breadth and versatility with which the litigation tool was deployed to enhance climate action.

 

AIDA then invited us to participate in a series of meetings to talk with the protagonists of some of the most emblematic strategic litigation cases worldwide.

 

The experience of interacting closely and in a safe space with these people was unparalleled. It undoubtedly strengthened my conviction that the fight being waged was very important, as well as the need to learn more about climate litigation.

 

Then came another invitation from AIDA, this time to collaborate on the advisory committee for the construction of a platform that would contain, in one place, the climate litigation cases from our region and in our language, as testimonies of a resistance that comes from various fronts.

 

The objective was to group and make visible the efforts of Latin America and the Caribbean in the face of climate conflicts on a website where users could access information, arguments to support struggles, strategies and the possibility of establishing contact with lawyers and scientists.

 

The Alana Institute of Brazil, the Environment and Natural Resources Foundation of Argentina, the Environmental Defense Office of Chile and Greenpeace Mexico responded to the call to participate in the design of the tool.

 

The main challenge was how to collect, systematize, and keep the data up to date. The solution was to form a team of rapporteurs . Thus, volunteers—lawyers or law students from different countries with an interest in working for the environment, climate, and respect for human rights—began to collaborate virtually in maintaining and updating the platform and reporting new cases in their jurisdictions.

 

The joint efforts bore fruit and, in February 2022, the Climate Litigation Platform for Latin America and the Caribbean was officially launched with the aim of strengthening climate litigation in the region and thereby its power to promote the structural changes that are needed.

 

The platform launched with 49 cases and currently hosts 61 cases from eight countries . Another 30 are in the process of being added. The cases are identified and categorized in a user-friendly and intuitive way. The team of rapporteurs consists of 24 people covering 12 countries. The platform would not be possible without their tireless work and enthusiasm.

 

A year and a half after the platform's launch , and much longer since its inception, my memories point to the enthusiasm, dedication, and commitment of many people to defend our common home, to fight against devastation, and to the possibility of bequeathing a greener and bluer planet to future generations.

 

We have an obligation to be accountable to future generations. We must provide tools, initiate and continue actions that will inform future legal actions to protect and care for the environment.

 

I share my certainty that the goals set by the community of practice in those first meetings of 2020 are being met and that this project will continue to move forward by leaps and bounds.

 

The challenge remains: to continue disseminating success stories, valuable lessons learned from when things don't go as planned, successful regional and international experiences; and to continue working to enforce the rulings that vindicate the planet.

 

From AIDA, we invite you to learn about and use the Climate Litigation Platform for Latin America and the Caribbean to delve into the world of climate litigation, which represents a great opportunity in the fight for climate justice and the protection of human rights in the region and the world.

 

Author: Marcela Morales Gutiérrez, Mexican litigator, external advisor to AIDA and collaborator of the PLC.

 

Every year, the Graham Research Institute on Climate Change and the Environment at the London School of Economics publishes a report reviewing global trends in climate litigation. The report's primary source is the global climate litigation database maintained by the Sabin Centre for Climate Change Law, an ally of the Climate Litigation Platform for Latin America and the Caribbean.

 

This fifth version of the report covers events between May 2022 and May 2023. It includes an update on the number of cases filed and their categories, a thematic review of the most recent cases, and a discussion of climate policy areas likely to be subject to legal controversy in the coming months and years.

 

Read the full report here (in English)

 

Review a summary of the main findings here (in English)

 

These are the key trends identified in the report:

 

The Sabin Center's database now contains 2,341 cases, 190 of which were filed in the last 12 months. The growth rate of cases appears to be slowing, but their diversity continues to expand. Cases against corporate actors have increased.

In the past year, cases were identified in seven countries where they had not previously been reported: Bulgaria, China, Finland, Romania, Russia, Thailand, and Turkey. In total, more than 130 cases were reported in the Global South.

Over 50% of cases result in direct court rulings favorable to climate action. Furthermore, these cases also have significant indirect impacts on climate change decision-making, extending beyond the courts. Many cases are still open and could yield further positive results.

At the international level, three requests for advisory opinions were submitted to international tribunals in the last 12 months. There are also pending cases before regional bodies.

> National legal protections (e.g., for the right to a healthy environment), together with national climate legislation, play a key role in cases against governments.

Strategic litigation appears to be on the rise, with recognizable strategies in different jurisdictions. Most of the cases filed seek climate-aligned outcomes, but non-climate-aligned litigation (for example, litigation seeking to limit environmental and social safeguards for investments) is increasing, particularly in the US.

Outside the U.S., there has been an increase in cases against governments and corporations challenging the implementation and ambition of climate policy. There has also been an increase in cases of “climate washing” that challenge purported environmental claims and commitments. Some cases are challenging misinformation, many based on consumer protection law.

The variety of legal arguments used in corporate cases is becoming more complex, with requests combining compensation for past and present losses, contributions to future adaptation costs, and requests for courts to order companies to align their activities with the goals of the Paris Agreement.

Litigation related to investment decisions is on the rise. Although courts have thus far been reluctant to be overly prescriptive, litigation has helped to clarify the parameters within which investment decisions should be made.

Today, emissions-intensive activities are more likely to face challenges at various points in their life cycle, from initial financing to final project approval. This includes the expansion of fossil fuel projects and agricultural practices that exacerbate deforestation.

 

On December 15, 2022, the Eleventh Collegiate Court for Administrative Matters of the First Circuit (Mexico City), an appellate court, ruled in favor of the Mexican government in the NGO vs. government case regarding a lack of ambition in updating Mexico's Nationally Determined Contributions (NDCs). The ruling is both consistent with and inconsistent with the Escazú Agreement.

Accordingly, the court applied a broad criterion of active legitimacy in ruling that the defense of the right to a healthy environment can be promoted by environmental organizations and not only by natural persons, thereby recognizing Greenpeace's authority to take the case.

However, the court denied the requested injunction, ruling that the plaintiff failed to provide “the necessary evidence” to demonstrate that updating the NDCs violates the human right to a healthy environment. This decision disregards the Escazú Agreement, which mandates that judges apply measures such as the reversal of the burden of proof, shifting the duty to prove to the defendant.

Consult the complete and updated case information here .

 

An analysis published earlier this year in The Wave, a newsletter specializing in climate litigation and climate justice, indicates that 2023 will be a crucial year for climate litigation worldwide due to the large number of significant cases that will go to trial or reach a verdict. The publication provides an overview of cases in the United States, Canada, Mexico, Brazil, South Africa, Uganda, Australia, New Zealand, South Korea, and China, among other countries, as well as regionally significant cases in Europe and Africa.

 

In these lawsuits, the defendants include governments and private companies. In Latin America, a region that has been a pioneer in its innovative approaches to climate litigation, the analysis indicates that litigation will increase and improve. This trend, projected for this year globally, follows rulings issued in 2022 by courts around the world that halted the construction of polluting power plants and denounced human rights violations stemming from the climate crisis.

 

MORE INFORMATION (in English): https://www.the-wave.net/climate-litigation-watershed-year/