Global warming presents a bleak future , especially for generations yet to be born or those who have yet to experience most of their lives. This has motivated children and young people around the world to go to court to sue their governments for failing to meet their obligations to curb the climate crisis. They are currently plaintiffs in nearly a third of all climate litigation cases worldwide .
Latin America is no stranger to this global trend. In Colombia and Ecuador , these sectors of the population have successfully demanded the attention of their respective governments. In Argentina , Peru And in Mexico, similar cases await resolution.
Despite the diversity of national legal contexts, a common aspect in the cases is the determination of active legitimacy as an obstacle to overcome so that the courts can contribute to guaranteeing a stable climate for future generations.
Next, we will explore the tensions surrounding the determination of legitimate interest by taking the case of Youth vs. Government of Mexico for a sustainable policy in the electricity sector , one of the first in that country in which children and youth brought their concerns about the climate crisis before the Supreme Court of Justice of the Nation (SCJN), and the case of Youth vs. Colombia for deforestation in the Amazon , which was resolved by the Supreme Court of Justice of Colombia.
Youth vs. Government of Mexico
In March 2021, more than 200 children and young people filed an indirect amparo lawsuit (a constitutional protection action in Mexico) against reforms to the Electricity Industry Law. They requested the District Court to suspend these modifications, arguing that they promote the use of fossil fuels, exacerbating the climate crisis and the deterioration of health. However, the court dismissed the lawsuit, finding that the plaintiffs lacked standing. It did not recognize a “differentiated grievance” for the plaintiffs compared to the rest of the population, considering that the negative effects of environmental degradation impact “unidentifiable groups.”
Consequently, in April of that year, the plaintiffs filed a complaint with a collegiate court. Their argument was that legitimate interest should be analyzed in light of the principles governing environmental matters, such as the precautionary principle and the principle of intergenerational equity . Then, in May, they requested the Supreme Court of Justice of the Nation (SCJN) to hear the appeal. Among other issues, they asked the highest court to resolve the scope of the legitimate interest of children and young people in indirect amparo proceedings when challenging general regulations that affect the environment and climate change mitigation; and whether young people are in a special situation when claiming a violation of the human right to a healthy environment.
In June 2021, the Second Chamber of the Supreme Court decided to hear the case. On December 7 of that year, it ruled that the appeal was unfounded. Thus, with three votes in favor and two against, it upheld the decision to dismiss the amparo lawsuit. The draft opinion presented by Justice Alberto Pérez Dayán held that the young plaintiffs were not “direct” beneficiaries of the challenged regulations related to electricity distribution, given that they are neither sellers nor buyers of electricity. Furthermore, they were not placed in a legally relevant position with respect to the rest of society: the Court considered that their argument of being especially vulnerable to the effects of climate change, exacerbated by the regulations, was not related to a direct cause of harm, but rather to an abstract and generic situation.
The Supreme Court of Justice of the Nation (SCJN) determined that the right to a healthy environment does not grant special protection to younger generations, since —according to the Second Chamber— said right benefits both current generations “without exclusions or distinctions” and future generations.
In his dissenting opinion , Justice Javier Laynez Potisek expressed his disagreement with this ruling. He argued that the appropriate course of action would have been to overturn the district court's decision and allow the court to examine in its final judgment whether the young people had a legitimate interest. Laynez Potisek considered that the plaintiffs' claims were linked to the fight against climate change, a problem with characteristics "different" from those previously analyzed by the Supreme Court in environmental matters.
Youth vs. Colombia
In what was the first lawsuit concerning future generations and the climate crisis in Latin America, 25 young people from various departments of Colombia—supported by the organization Dejusticia—filed a tutela (constitutional protection action) in January 2018 against the national government for failing to uphold its commitment to protect the Amazon.
Similar to the case in Mexico, the plaintiffs invoked the principles of precaution and intergenerational equity to request a halt to deforestation. However, this action was dismissed at first instance by the Superior Court of Bogotá, which held that a collective interest, such as climate change mitigation, could not be safeguarded through a tutela action (since its scope is limited to the protection of individual rights).
The plaintiffs appealed the ruling to the Supreme Court, which ruled in their favor, ordering the government to implement an intergenerational pact to reduce deforestation in the Amazon. The Court determined that the collective interest of young people in protecting the Amazon rainforest was “closely linked” to their individual rights, such as the right to life and health. It highlighted this link in light of the principles of precaution and intergenerational equity.
The need for a broad legitimate interest
The cases presented demonstrate that protecting the rights of future generations in the face of the climate crisis is not without procedural complexities. While key principles such as the precautionary principle and intergenerational equity have been developed to address the temporal nature of environmental damage, the climate crisis demands jurisdictional mechanisms that allow these principles to be applied to the scope and urgency of the problem. Recognizing a broad legitimate interest is the first step in addressing it, as acknowledged in Article 8.3 of the Escazú Agreement.
Broad standing to sue does not suggest that courts should refrain from considering the underlying social, economic, and political aspects of the climate crisis. Rather, it implies that they should be willing to delve into the subject matter, as reflected in the case of Colombia and as expressed by Justice Laynez Potisek of the Supreme Court of Justice of Mexico in his dissenting opinion. In this regard, the Justice believes that there is even a risk in maintaining the inadmissibility of amparo claims in cases involving young people, as this could completely eliminate the opportunity for this particularly vulnerable sector to resort to legal mechanisms to challenge any measure that exacerbates climate change.
Only by overcoming procedural barriers that seem incompatible with the urgency and scope of the challenge will the judicial sphere be able to adopt a constructive role in ensuring a stable climate for future generations.
Text written by Thalia Viveros Uehara, Aranza Montero Guizar and Daniel Iglesias Márquez, advisors of the Climate Litigation Platform for Latin America and the Caribbean, Mexico jurisdiction
Global warming presents a bleak future , especially for generations yet to be born or those who have yet to experience most of their lives. This has motivated children and young people around the world to go to court to sue their governments for failing to meet their obligations to curb the climate crisis. They are currently plaintiffs in nearly a third of all climate litigation cases worldwide .
Latin America is no stranger to this global trend. In Colombia and Ecuador , these sectors of the population have successfully demanded the attention of their respective governments. In Argentina , Peru And in Mexico, similar cases await resolution.
Despite the diversity of national legal contexts, a common aspect in the cases is the determination of active legitimacy as an obstacle to overcome so that the courts can contribute to guaranteeing a stable climate for future generations.
Next, we will explore the tensions surrounding the determination of legitimate interest by taking the case of Youth vs. Government of Mexico for a sustainable policy in the electricity sector , one of the first in that country in which children and youth brought their concerns about the climate crisis before the Supreme Court of Justice of the Nation (SCJN), and the case of Youth vs. Colombia for deforestation in the Amazon , which was resolved by the Supreme Court of Justice of Colombia.
Youth vs. Government of Mexico
In March 2021, more than 200 children and young people filed an indirect amparo lawsuit (a constitutional protection action in Mexico) against reforms to the Electricity Industry Law. They requested the District Court to suspend these modifications, arguing that they promote the use of fossil fuels, exacerbating the climate crisis and the deterioration of health. However, the court dismissed the lawsuit, finding that the plaintiffs lacked standing. It did not recognize a “differentiated grievance” for the plaintiffs compared to the rest of the population, considering that the negative effects of environmental degradation impact “unidentifiable groups.”
Consequently, in April of that year, the plaintiffs filed a complaint with a collegiate court. Their argument was that legitimate interest should be analyzed in light of the principles governing environmental matters, such as the precautionary principle and the principle of intergenerational equity . Then, in May, they requested the Supreme Court of Justice of the Nation (SCJN) to hear the appeal. Among other issues, they asked the highest court to resolve the scope of the legitimate interest of children and young people in indirect amparo proceedings when challenging general regulations that affect the environment and climate change mitigation; and whether young people are in a special situation when claiming a violation of the human right to a healthy environment.
In June 2021, the Second Chamber of the Supreme Court decided to hear the case. On December 7 of that year, it ruled that the appeal was unfounded. Thus, with three votes in favor and two against, it upheld the decision to dismiss the amparo lawsuit. The draft opinion presented by Justice Alberto Pérez Dayán held that the young plaintiffs were not “direct” beneficiaries of the challenged regulations related to electricity distribution, given that they are neither sellers nor buyers of electricity. Furthermore, they were not placed in a legally relevant position with respect to the rest of society: the Court considered that their argument of being especially vulnerable to the effects of climate change, exacerbated by the regulations, was not related to a direct cause of harm, but rather to an abstract and generic situation.
The Supreme Court of Justice of the Nation (SCJN) determined that the right to a healthy environment does not grant special protection to younger generations, since —according to the Second Chamber— said right benefits both current generations “without exclusions or distinctions” and future generations.
In his dissenting opinion , Justice Javier Laynez Potisek expressed his disagreement with this ruling. He argued that the appropriate course of action would have been to overturn the district court's decision and allow the court to examine in its final judgment whether the young people had a legitimate interest. Laynez Potisek considered that the plaintiffs' claims were linked to the fight against climate change, a problem with characteristics "different" from those previously analyzed by the Supreme Court in environmental matters.
Youth vs. Colombia
In what was the first lawsuit concerning future generations and the climate crisis in Latin America, 25 young people from various departments of Colombia—supported by the organization Dejusticia—filed a tutela (constitutional protection action) in January 2018 against the national government for failing to uphold its commitment to protect the Amazon.
Similar to the case in Mexico, the plaintiffs invoked the principles of precaution and intergenerational equity to request a halt to deforestation. However, this action was dismissed at first instance by the Superior Court of Bogotá, which held that a collective interest, such as climate change mitigation, could not be safeguarded through a tutela action (since its scope is limited to the protection of individual rights).
The plaintiffs appealed the ruling to the Supreme Court, which ruled in their favor, ordering the government to implement an intergenerational pact to reduce deforestation in the Amazon. The Court determined that the collective interest of young people in protecting the Amazon rainforest was “closely linked” to their individual rights, such as the right to life and health. It highlighted this link in light of the principles of precaution and intergenerational equity.
The need for a broad legitimate interest
The cases presented demonstrate that protecting the rights of future generations in the face of the climate crisis is not without procedural complexities. While key principles such as the precautionary principle and intergenerational equity have been developed to address the temporal nature of environmental damage, the climate crisis demands jurisdictional mechanisms that allow these principles to be applied to the scope and urgency of the problem. Recognizing a broad legitimate interest is the first step in addressing it, as acknowledged in Article 8.3 of the Escazú Agreement.
Broad standing to sue does not suggest that courts should refrain from considering the underlying social, economic, and political aspects of the climate crisis. Rather, it implies that they should be willing to delve into the subject matter, as reflected in the case of Colombia and as expressed by Justice Laynez Potisek of the Supreme Court of Justice of Mexico in his dissenting opinion. In this regard, the Justice believes that there is even a risk in maintaining the inadmissibility of amparo claims in cases involving young people, as this could completely eliminate the opportunity for this particularly vulnerable sector to resort to legal mechanisms to challenge any measure that exacerbates climate change.
Only by overcoming procedural barriers that seem incompatible with the urgency and scope of the challenge will the judicial sphere be able to adopt a constructive role in ensuring a stable climate for future generations.
Text written by Thalia Viveros Uehara, Aranza Montero Guizar and Daniel Iglesias Márquez, advisors of the Climate Litigation Platform for Latin America and the Caribbean, Mexico jurisdiction