Part II - Merits

7 Human Rights

Margaretha Wewerinke-Singh and Lucy Maxwell *

Climate change is a reality that now affects every region of the world. The human implications of currently projected levels of global heating are catastrophic. Storms are rising and tides could submerge entire island nations and coastal cities. Fires rage through our forests, and the ice is melting. We are burning up our future – literally.

Michelle Bachelet, ‘Global Update at the 42nd session of the Human Rights Council’

7.1 Introduction

It has been widely recognised that climate change adversely affects the enjoyment of a wide range of human rights, including the rights to life, adequate housing, food, the highest attainable standard of health, and the right to self-determination.¹ Measures taken to respond to climate change also have implications for the enjoyment of human rights.² As of December 2023, the United Nations (UN) Human Rights Council has adopted thirteen resolutions on human rights and climate change,³ and several UN Special Procedure mandate holders have published reports on human rights and climate change.⁴ The Paris Agreement refers explicitly to human rights in its preamble, calling upon parties to ‘respect, promote and consider their respective obligations on human rights’.⁵ The link between human rights and climate change was further institutionalised through the creation of a mandate for a Special Rapporteur on Human Rights and Climate Change,⁶ who was first appointed in March 2022.⁷

The recognition of the link between climate change and human rights has also inspired litigation, giving rise to an increasingly rich body of jurisprudence clarifying the scope and content of States’ human rights obligations in the context of climate change.⁸ Recent jurisprudence further suggests that corporations also have obligations to respect human rights in the face of climate change.⁹

In this chapter, we provide a roadmap to this field of climate litigation based on human rights or constitutional rights provisions (rights-based climate litigation). We summarise key jurisprudential developments and identify emerging areas of best practice and replicable jurisprudence.

7.2 Rights-Based Climate Litigation at a Glance

Rights-based climate litigation is a dynamic and rapidly evolving field of practice globally.¹⁰ In the past decade, and particularly since the adoption of the Paris Agreement in 2015,¹¹ courts and tribunals around the world have issued judgments in rights-based climate cases, demonstrating a rising trend in climate litigation.¹² As at the end of 2022, more than a hundred rights-based climate cases have been identified globally.¹³ Predominantly, these rights-based climate cases have been brought against States and public authorities,¹⁴ while a smaller but rapidly growing number of cases filed against corporations.¹⁵ These cases broadly encompass four categories:

1. a) Systemic or ‘framework’ mitigation cases that concern a State’s (or company’s) overall efforts to mitigate climate change;

2. b) Project-based cases that concern the conduct of a State (or its organs) with respect to a specific project or initiative with greenhouse gas (GHG) implications. Most cases are premised on statutory grounds (such as under planning law) and focus on the State’s failure to meet requirements of consultation, provision of information, and environmental impact assessment, including contribution to climate change;

3. c) Adaptation and loss and damage cases that concern actions related to the impacts of climate change, including adaptation and climate-induced migration; and

4. d) ‘Just transition’ cases that concern the design or implementation of a State’s mitigation measures.

Most rights-based cases determined by courts fall into the systemic mitigation category.¹⁶ The rights relied upon by plaintiffs in such cases include the right to self-determination; the right to life and dignity; the right to the highest attainable standard of health; the right to private and family life; the right to residence, movement, and inviolability of home; the right to a healthy environment; the right to property; cultural rights; and the right to equality and freedom from discrimination. Some rights-based cases invoke the State’s obligations with respect to procedural rights such as the right to information, participation, and the right to a remedy.¹⁷ The invocation of procedural rights is particularly common in project-based and ‘just transition’ cases.¹⁸

With respect to fora, most rights-based climate cases have been filed at the national level, with domestic courts issuing the vast majority of judgments in cases to date.¹⁹ Regional and international courts, tribunals, and human rights bodies have also developed a rich body of norms and principles regarding States’ human rights obligations in the context of climate change.²⁰ At the time of publication, there are pending climate cases before the European Court of Human Rights (ECtHR) and the East African Court of Justice.²¹ Moreover, in March 2023, the UN General Assembly adopted a resolution by consensus requesting an advisory opinion from the International Court of Justice on the obligation of States with respect to climate change.²² Similar advisory opinion requests have also been submitted to the International Tribunal for the Law of the Sea²³ as well as the Inter-American Court of Human Rights.²⁴

In terms of outcomes, courts have issued a range of remedies in rights-based cases. These include declaratory relief;²⁵ determinations that provisions of legislation are unconstitutional;²⁶ injunctive relief²⁷ (including orders imposing particular emission-reduction targets²⁸ or requiring that existing targets to be met);²⁹ quashing orders for emission-intensive projects;³⁰ and particular types of adaptation support and relief. The next section will explore the expansive scope of rights-based case law in greater detail.

7.3 Case Law Development

Legal norms governing States’ human rights obligations in the context of climate change have matured greatly in many jurisdictions around the world in recent years. Emerging jurisprudence further suggests that corporations have obligations to respect human rights in the face of climate change, including the alignment of their policies and conduct with the goals of the Paris Agreement. This selection provides a summary of developments across the four categories of rights-based climate cases. While the most significant developments have occurred in decisions issued in ‘systemic’ mitigation cases against governments, relevant principles are also starting to emerge from jurisprudence in other categories of rights-based climate cases.

7.3.1 Systemic Mitigation Cases

Systemic mitigation cases challenge a State’s (or company’s) overall efforts to mitigate climate change. The central allegation in such cases is that the State has failed to adopt reasonable and appropriate measures to mitigate climate change through the rapid reduction of GHG emissions, and that this failure constitutes a violation of its obligation to protect human rights, given the severe and foreseeable harm caused by climate change, of which the State knows or ought to have known.³¹ Most such cases have been brought against governments in the Global North. Additionally, there is a small but growing number of cases that challenge a corporation’s contribution to climate change and inadequate mitigation measures.³²

Judgments issued in systemic mitigation cases to date include those by: the Dutch courts in Urgenda v the Netherlands;³³ the German Constitutional Court in Neubauer et al v Germany;³⁴ the District Court of the Hague in Milieudefensie v Royal Dutch Shell;³⁵ and by courts in Belgium,³⁶ Canada,³⁷ Colombia,³⁸ France,³⁹ Ireland,⁴⁰ Switzerland,⁴¹ the United States,⁴² Nepal,⁴³ and Brazil⁴⁴ in cases which, like Urgenda, concern the lawfulness of the State’s overall mitigation efforts. The decisions have all been issued since 2015, which marks the beginning of the wave of systemic mitigation cases globally.⁴⁵ Until the UN Human Rights Committee issued its views on Billy et al v Australia, no regional or international court or tribunal had issued a decision on the merits in such a case.⁴⁶ We discuss this decision – which remains the only one of its kind – later on.

Systemic mitigation cases have led to a range of notable developments in jurisprudence.⁴⁷ For instance, many jurisdictions – including courts in the Netherlands,⁴⁸ Germany,⁴⁹ Belgium,⁵⁰ Canada,⁵¹ Colombia,⁵² and Nepal⁵³ – have recognised the justiciability of systemic mitigation cases, which is an important threshold issue, as described in greater detail in the Admissibility chapter.⁵⁴ Although some courts in North America have declined to hear systemic mitigation cases on admissibility grounds,⁵⁵ many courts elsewhere in the world have recognised that the State has a legal obligation under existing human rights law to undertake mitigation efforts, through GHG emissions reduction, in light of the harm caused by climate change. Finally, a smaller number of courts have proceeded to assess whether a State’s overall mitigation efforts are sufficient to discharge its human rights obligations.⁵⁶ These significant judgments include Urgenda and Neubauer (as well as a recent appeal decision in the Belgian Klimaatzaak case), which we explore in Section 7.4.

A small but growing number of rights-based climate cases have been filed against corporations. A landmark case in this category is the Carbon Majors inquiry of the Commission on Human Rights of the Philippines (CHRP), also known as In re Greenpeace Southeast Asia and Others,⁵⁷ which focused on the responsibility of fossil fuel companies for human rights violations resulting from climate change. The inquiry resulted in a groundbreaking report in which the CHRP documented the contribution of fossil fuel companies’ products and operations to climate change and the resulting loss and damage.⁵⁸ The report also provided evidence that these companies were aware of the climate risks from their products for several decades, but misled investors, regulators, and the public about the nature and severity of these risks.⁵⁹

The District Court of the Hague in Milieudefensie v Royal Dutch Shell built on the findings of the CHRP report and reached its own landmark holding in 2021. The court issued the first decision globally that found that a corporation had a legal obligation, pursuant to tort law, to adopt additional Scope 1, 2, and 3 GHG emission-reduction measures. The judgment determined that Royal Dutch Shell’s obligations in tort law must be read in light of human rights law, including the UN Guiding Principles on Business and Human Rights, Articles 2 and 8 of the European Convention on Human Rights (ECHR), and Articles 6 and 17 of the International Covenant on Civil and Political Rights (ICCPR), which we expand on later.⁶⁰

7.3.2 Project Cases

Project cases can trigger human rights guarantees in several ways. First, they may invoke ‘procedural’ human rights, such as those enshrined under the Aarhus Convention and Escazú Agreement, which include the right of access to information, the right to a fair hearing, and the right to an effective remedy. Secondly, they may rely on ‘substantive’ human rights, such as the rights to life and health. In the latter type of cases, the argument is similar to those made in ‘systemic’ mitigation cases: that the approval of the project is contrary to the duty to adopt reasonable and appropriate measures to protect human rights from the harm posed by climate change. It is important to note that there is a small body of jurisprudence regarding rights-based project cases and a larger body that does not relate to human rights arguments.⁶¹ These cases concern a range of matters, including: the decision to permit exploration for new fossil fuel reserves;⁶² permission for a new coal-fired power plant;⁶³ approval of an airport extension;⁶⁴ and the sale of state-owned coal-fired power plants.⁶⁵

Jurisprudence in rights-based project cases has produced a mixed picture to date. For example, courts in South Africa have upheld two project-based cases with rights arguments, including the express constitutional right to a healthy environment. In EarthLife, the High Court found that the minister’s failure to consider the proposed mine’s contribution to global climate change rendered the approval unlawful, despite no express reference to climate change in the relevant legislation.⁶⁶ In Sustaining the Wild Coast NPC and others, the High Court granted an injunction to prevent seismic surveying for offshore fossil fuel reserves due to the defendants’ failure to meaningfully consult the applicants, as well as the risk of harm from the seismic survey, which would promote extraction of fossil fuels and adversely impact climate change, the applicant communities’ cultural practices, ocean conservation, and the spiritual and sustainable use of ocean for healing and fishing purposes.⁶⁷

Similarly, in Australia, in the Waratah Coal case, the Queensland Land Court recommended to the relevant government minister that an application for a new coal mine should be rejected.⁶⁸ The Court took into account a range of factors in reaching this decision, including the contribution of the mine to climate change, the economic and social benefits and costs, and the impacts on human rights.⁶⁹ The Court found that the project would limit a range of human rights, including the right to property, privacy, and home for the owners of the local area, and in relation to climate change, the cultural rights of First Nations Peoples, the rights of children, the right to property and to privacy and home, the right to enjoy human rights equally, and the right to life.⁷⁰ The final approval of the project depends on the decision of the government minister, but this court decision sets an important precedent for challenges to mining projects on public interest and human rights grounds.

Likewise, in Marangopoulos Foundation for Human Rights v Greece, the European Committee on Social Rights underscored the need for a holistic assessment of States’ environmental law obligations on the one hand and its human rights obligations on the other.⁷¹ The Committee found that Greece violated the right to a clean environment (Article 11 of the European Social Charter (‘the Charter’)), the right to just conditions of work (Article 2 of the Charter), and the right to safe and healthy working conditions (Article 3 of the Charter) as a result of the nature of the State’s defective oversight and partial ownership of several lignite coal mines and coal-fired power plants.⁷² The violations stemmed from the State’s failure to prepare adequate environmental impact assessments, lax enforcement of pollution control measures, failure to achieve reductions in the emission of conventional pollutants and GHGs, and a lack of effective labour protections. In establishing these violations, the Committee observed that Greece had not managed to strike a reasonable balance between the interests of persons living in the mining areas and the general interests,⁷³ and that it had failed to provide precise and plausible information on measures taken to ensure the enforcement of regulations on health and safety.⁷⁴ These findings show that even provisions of human rights treaties that grant national authorities a considerable margin of discretion must be interpreted in a manner that makes the relevant human rights safeguards practical and effective.

By contrast, courts in other jurisdictions have dismissed project-based cases featuring human rights arguments. This jurisprudence includes legal challenges to airport extensions in Austria⁷⁵ and in England and Wales;⁷⁶ oil drilling in Argentina⁷⁷ and Norway;⁷⁸ and the sale of a state-owned coal-fired power plant in Sweden.⁷⁹ The dismissal of these cases, which attempted to leverage human rights arguments to deter projects with significant deleterious impacts on the climate system, underscores the intricate challenge of applying traditional legal frameworks to the complex, global, and systemic nature of the climate crisis. Further, they highlight the pressing need for more expansive legal approaches to ensure that these legal frameworks remain fit for purpose in the face of the evolving climate crisis.

The section on emerging best practice will highlight instances where judicial innovation and adaptability have paved the way for rulings capable of offering protection of the climate system. These emerging best practices offer a beacon of hope, demonstrating the potential of the judiciary to grapple with climate change through a human rights lens. As we examine these cases, we can draw valuable insights on how courts can evolve their interpretations and applications of legal frameworks to better address the multifaceted human rights issues posed by the climate crisis.

7.3.3 Adaptation and Loss and Damage Cases

Several cases concerning States’ human rights obligations in the context of climate change adaptation hail from the Global South.⁸⁰ For instance, the leading judgment in this category is that of the Lahore High Court in Leghari v Pakistan in 2015.⁸¹ There, the High Court found that the State had failed to take appropriate action with respect to climate change adaptation and that this infringed the petitioner’s right to life and the right to human dignity under Pakistan’s Constitution.⁸² The Court ordered the State to effectively implement its existing adaptation policies, including allocating a specified budget to climate change adaptation in order to guarantee an effective protection to constitutional rights. Another relevant case is Advocate Padam Bahadur Shrestha v Prime Minister and Office of Council of Ministers and Others. In this decision from the Supreme Court of Nepal, the petitioner secured an order directing the relevant authorities to actively implement national adaptation plans and policies and to formulate an effective implementation plan for adaptation and mitigation to protect people’s lives and livelihoods from direct and indirect effects of climate change.⁸³

In other cases, courts have ordered States to adopt new laws or policies pertaining to adaptation. Of particular note is the decision of the Colombian Supreme Court in Future Generations v Ministry of the Environment and Others (Future Generations). In addition to measures relating to the protection of the Amazon, the Supreme Court ordered the formulation and implementation of national, regional, and local implementation strategies of a preventative, mandatory, corrective, and pedagogical nature, directed towards climate change adaptation.⁸⁴ Likewise, in Notre Affaire à Tous and others v France (Notre Affaire), the plaintiffs sought an order enjoining the Government of France, amongst other things, to take the necessary measures to adapt the national territory to the effects of climate change.⁸⁵ While the Administrative Court of Paris deferred the decision on whether to issue an injunction, it did issue a decision recognising that the State’s failure to take adequate climate action had resulted in ecological damage.⁸⁶ Finally, of particular note is the decision of the UN Human Rights Committee in Billy et al v Australia, in which the Committee found that Australia’s ‘failure to adopt timely adequate adaptation measures’ violated the First Nation authors’ rights to privacy and home (Article 17 ICCPR) and cultural rights (Article 27 ICCPR), which we outline in more detail in Section 7.4.3.

Few cases to date have addressed questions related to loss and damage from climate change.⁸⁷ In the earliest of these cases, Pro Public and Others v Godavari Marble Industries Pvt Ltd and Others (Pro Public), the petitioners sought, among others, orders that would hold the respondent accountable for paying the costs of restoring the Godavari area in Nepal to its earlier condition prior to the operation of the mines in question.⁸⁸ While the Supreme Court of Nepal did not grant the requested compensation, it did quash the Department of Mines and Geology’s decision to extend the lease to the respondent company with another ten years so as to avoid further damage.⁸⁹ Similarly, in Notre Affaire, the plaintiff NGOs demanded the symbolic sum of one euro in compensation for moral damage they claimed to have suffered as a result of the climate crisis, and another one euro in compensation for environmental damage linked to climate change. The Administrative Court of Paris found that France’s failure to take ambitious climate action had indeed resulted in environmental damage from climate change and awarded the plaintiffs the requested amount of one euro in compensation for moral damage. However, it declined to issue compensatory damages for environmental harm as it found that the plaintiffs had failed to show that the government was unable to repair the harm caused by its inaction.⁹⁰

To date, there have been no rights-based cases that address the obligations of developed countries to provide climate finance pursuant to the UN Framework Convention on Climate Change (UNFCCC)⁹¹ and Paris Agreement.⁹² However, three domestic cases concerned developed countries’ obligations to provide legal protection to people fleeing the impacts of climate change. The earliest of these was a claim before Australia’s Refugee Review Tribunal filed by a citizen of Kiribati, which argued that the destruction of their main livelihood in Kiribati because of climate change gave rise to protection obligations for Australia under the Refugee Convention.⁹³ Citizens of Tuvalu⁹⁴ and Kiribati⁹⁵ filed similar protection claims before courts and tribunals in New Zealand. All these claims were dismissed for various reasons, including that the harm alleged did not constitute ‘persecution’ under refugee law. In Ioane Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment, however, the Supreme Court of New Zealand noted that its decision did not rule out the possibility ‘that environmental degradation resulting from climate change or other natural disasters could create a pathway into the Refugee Convention or protected person jurisdiction’.⁹⁶ As discussed later, the case was subsequently brought before the UN Human Rights Committee as Ioane Teitiota v New Zealand (Teitiota),⁹⁷ where the question before the Committee was whether New Zealand’s decision to deport Mr Teitiota constituted a violation of his right to life under the ICCPR.

7.3.4 Just Transition Cases

Finally, a small but growing number of rights-based cases challenge the design or implementation of a State’s mitigation measures. These are known as ‘just transition’ or ‘mal-adaptation’ cases,⁹⁸ the majority of which are brought by Indigenous Peoples. In general, plaintiffs allege that the State has failed to take into account their human rights in designing or adopting mitigation measures, such as the development of wind farms. As most of these cases remain pending, they are not included in the ‘best practice’ analysis. However, their potential to create positive obligations on States in this arena is worthy of attention in future scholarship.

7.4 Emerging Best Practice

Having reviewed the current state of play in rights-based climate litigation, it is clear that courts and tribunals around the world are increasingly recognising the need to address the human rights implications of climate change. From the judgments and decisions rendered to date, we can distil several areas of emerging best practice in rights-based climate jurisprudence. These best practices fall into three broad categories: interpretative techniques, recognition of the impacts of climate change on human rights, and recognition of States’ obligations or corporations’ responsibilities to protect human rights in the face of the climate crisis. In this section, we will explore each of these areas in more detail and highlight some of the key cases and decisions that have contributed to their development.

7.4.1 Interpretive Techniques

National courts and UN human rights bodies have recognised that, in interpreting States’ obligations to protect human rights in the context of climate change, it is instructive to refer to norms of international environmental law and best available science.⁹⁹ This is particularly important as most human rights instruments do not expressly refer to climate change. Furthermore, as mentioned earlier, States’ obligations to protect human rights are usually framed by reference to open-textured standards of ‘reasonableness’ and ‘appropriateness’.¹⁰⁰ International law, as it pertains to climate change, environmental protection, transboundary harm, and human rights, has thus been a crucial source for many courts and UN human rights institutions in interpreting States’ obligations in the context of climate change.¹⁰¹ Many courts have referred to the near-universally ratified UNFCCC and Paris Agreement as central sources of applicable legal norms.¹⁰² For instance, the ultimate objective of the UNFCCC, as cited by the Dutch Supreme Court in Urgenda, is ‘to stabilise greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous human induced interference with the climate system’.¹⁰³ The principles and commitments contained in the UNFCCC are discussed in more detail in the chapter on international law.¹⁰⁴

Turning now to courts’ application of these sources in practice, the Dutch Supreme Court in Urgenda has also provided the most extensive explanation of its interpretive method. The interpretive method itself, as well as the Dutch Supreme Court’s sense of transparency in the process of establishing a legal duty with far-reaching implications, is indicative of emerging best practice.¹⁰⁵ Pursuant to Article 31(1) of the Vienna Convention on the Law of Treaties, the Court determined that the ECHR must be interpreted so as to render its provisions ‘practical and effective’ in light of its object and purpose as a treaty to protect individual human beings.¹⁰⁶ This required a consideration of ‘the relevant rules of international law’,¹⁰⁷ the practice of European States,¹⁰⁸ and ‘scientific insights and generally accepted standards’.¹⁰⁹ The Court’s approach consciously reflected the ECtHR’s ‘common ground’¹¹⁰ doctrine,¹¹¹ which enables the European court to interpret the Convention ‘in the light of present day conditions’ and on the basis that it is a ‘living instrument’.¹¹² The common ground approach, furthermore, ensures that human rights instruments remain relevant in light of evolving threats to human rights. Accordingly, the Supreme Court then drew upon international law in a number of stages in its judgment, as we discuss later.¹¹³

Numerous other national courts have engaged closely with international law in adjudicating rights-based climate cases. The Lahore High Court stated in Leghari that ‘[o]ur environmental jurisprudence … has weaved our constitutional values and fundamental human rights with the international environmental principles’.¹¹⁴ This built on the understanding of the court that:

fundamental rights, like the right to life … which includes the right to a healthy and clean environment and right to human dignity … read with constitutional principles of democracy, equality, social, economic and political justice include within their ambit and commitment, the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra-generational equity and public trust doctrine. Environment and its protection has taken a center stage in the scheme of our constitutional rights. … The existing environmental jurisprudence has to be fashioned to meet the needs of something more urgent and overpowering i.e., Climate Change. From Environmental Justice, which was largely localized and limited to our own ecosystems and biodiversity, we need to move to Climate Change Justice. Fundamental rights lay at the foundation of these two overlapping justice systems. Right to life, right to human dignity, right to property and right to information … read with the constitutional values of political, economic and social justice provide the necessary judicial toolkit to address and monitor the Government’s response to climate change.¹¹⁵

In Milieudefensie v Shell, the Hague District Court of the Netherlands extended this reasoning to corporations, finding that Royal Dutch Shell had an obligation under Dutch tort law to reduce its emissions in accordance with the long-term temperature goal enshrined in the Paris Agreement and in accordance with the best available scientific evidence as laid down in the reports of the Intergovernmental Panel on Climate Change (IPCC). Significantly, Shell’s duty of care under Dutch tort law was construed in light of the rights to life and respect for private and family life, as enshrined in the ECHR and in the ICCPR. While recognising that these human rights treaties do not directly bind corporations, the Court highlighted ‘the widespread international consensus that human rights offer protection against the impacts of dangerous climate change and that companies must respect human rights’.¹¹⁶ The Court explicitly relied on the UN Guiding Principles on Business and Human Rights (UNGP) in its understanding of businesses’ responsibilities to respect human rights, noting that since 2011, ‘the European Commission has expected European businesses to meet their responsibilities to respect human rights, as formulated in the UNGP’.¹¹⁷ For this reason, the UNGP ‘are suitable as a guideline in the interpretation of the unwritten standard of care’ contained in Dutch national law.¹¹⁸ The Court’s willingness to draw from these guidelines and other relevant human rights law can thus be considered an emerging best practice with respect to corporations’ responsibilities to address the climate crisis.

In another rights-based case focused on both mitigation and adaptation, the Supreme Court of Colombia in Future Generations contributed to emerging best practice by drawing extensively upon principles of international law.¹¹⁹ The Court outlined that its judgment would be guided by ‘the legal environmental principles of (i) precaution; (ii) intergenerational equity; and (iii) solidarity’ (the latter reflecting the ‘no harm’ principle of customary international law).¹²⁰ The Court then drew upon the precautionary principle in assessing the severity of the harm posed by climate change, and referred to the risk and irreversibility of the damage posed by climate change.¹²¹ Citing the principle of intergenerational equity, the Court adopted a broad understanding of the persons and things to whom the State’s duty to protect fundamental rights extends, including future generations and persons outside Colombia’s borders:¹²² ‘In terms of intergenerational equity, the transgression is obvious’, given that ‘future generations, including the children who brought this action, will be directly affected, unless our present generation reduces the deforestation rate to zero’.¹²³ The Colombian State thereby has a ‘co-responsibility’ to protect the Amazon as a global resource, not only for Colombian people, but ‘other people who inhabit and share the Amazon [in] foreign territory’ and the world’s population in general,¹²⁴ on the basis of the solidarity principle. Finally, the Court found that the State’s failure to reduce deforestation was inconsistent with its commitments under the Paris Agreement, which strengthened its finding regarding the State’s violation of the claimants’ constitutional rights.¹²⁵

The views of the UN Committee on the Rights of the Child (CRC) in Sacchi also demonstrated the relevance of international environmental law in interpreting international human rights law. Citing the Advisory Opinion OC-23/17 of the Inter-American Court of Human Rights, the Committee stated that the obligation to prevent transboundary environmental damage or harm is an obligation recognised by international environmental law, under which States may be held responsible for any significant damage caused to persons outside their borders by activities originating in their territory or under their effective control or authority.¹²⁶ The Committee also referenced the principles of intergenerational equity and the precautionary principle, as well as the Paris Agreement and the UNFCCC, as sources informing its interpretation of the Convention on the Rights of the Child.¹²⁷ This approach can be considered an emerging best practice, as the Committee not only emphasised the criticality of these environmental instruments and norms in ensuring children’s rights but also suggested the potential of these agreements to inform the broader landscape of human rights law.¹²⁸

7.4.2 Impacts of Climate Change on Human Rights

Emerging best practice in climate litigation also shows judicial recognition of the impacts of climate change on human rights, both in general and on particular groups. National¹²⁹ and regional¹³⁰ courts and UN human rights institutions¹³¹ have recognised that climate change is already having, and will have, a significant impact on the enjoyment of a wide range of human rights.

National courts, in particular, have repeatedly emphasised the far-reaching impacts of climate change on human rights. This emerging best practice is illustrated in several landmark decisions. For example, the court in Leghari, found that:

Climate Change is a defining challenge of our time and has led to dramatic alternations in our planet’s climate system. For Pakistan, these climatic variations have primarily resulted in heave floods and droughts, raising serious concerns regarding water and food security. On a legal and constitutional plane this is clarion call for the protection of fundamental rights of the citizens of Pakistan, in particular, the vulnerable and weak segments of the society who are unable to approach this Court.¹³²

As a result, the Court emphasised that ‘the delay and lethargy of the State in implementing [its climate policies] offends the fundamental rights of the citizens which need to be safeguarded’.¹³³ Similarly, the Dutch Supreme Court in Urgenda held that the harm posed by climate change triggered the State’s obligations to protect the rights to life and to private and family life under the ECHR, in particular due to the precautionary principle.¹³⁴ According to the Court:

The fact that this risk will only be able to materialise a few decades from now and that it will not impact specific persons or a specific group of persons but large parts of the population does not mean – contrary to the State’s assertions – that Articles 2 and 8 ECHR offer no protection from this threat […]. This is consistent with the precautionary principle … The mere existence of a sufficiently genuine possibility that this risk will materialise means that suitable measures must be taken.¹³⁵

The Urgenda decision has inspired plaintiffs in other jurisdictions to pursue more ambitious climate action from their governments. In many of these instances, courts in Europe have followed the Dutch courts’ lead and relied on climate impacts on human rights in their decisions. For example, in Klimaatzaak, the Court of First Instance of Brussels in Belgium recognised that ‘there can no longer be any doubt that there is a real threat of dangerous climate change with a direct negative effect on the daily lives of current and future generations of Belgium’s inhabitants’.¹³⁶ In a recent decision, the Court of Appeal of Brussels affirmed this decision (and expanded on several aspects of the lower court’s reasoning).¹³⁷ In Neubauer, the German Federal Constitutional Court highlighted that ‘[h]uman health is particularly vulnerable to climate change’ and listed a range of ways in which health is impacted by climate change. Apart from impacting physical health, these climate impacts ‘can increase social and psychological pressures and trigger disorders such as stress, anxiety attacks and depression’.¹³⁸

Shifting focus to the regional and international level, five UN treaty bodies have recognised, in a joint statement, that ‘climate change poses significant risks to the enjoyment of the human rights’, including ‘the right to life, the right to adequate food, the right to adequate housing, the right to health, the right to water and cultural rights’.¹³⁹ The health impacts of climate change were given specific attention by the Inter-American Court of Human Rights in its advisory opinion,¹⁴⁰ and by the UN CRC in Sacchi v Argentina. The UN CRC, in particular, gave serious thought to the disproportionate impact of climate change on children as a group. In its deliberation, the Committee highlighted that as children, the authors were particularly impacted by the adverse effects of climate change. This impact arises not just from the unique ways in which they already experience these effects but also from the increasingly serious long-term impact climate change could have on them, particularly if immediate action is not taken.¹⁴¹ Building on this, and noting the explicit recognition by State parties to the Convention that children are entitled to special safeguards, including appropriate legal protection, it found that States have heightened obligations to protect children from foreseeable harm resulting from climate change.¹⁴² This finding more broadly suggests that States are obliged to take urgent, proactive measures to ensure the rights of vulnerable groups who are disproportionately impacted by climate change.

Judicial emphasis on climate impacts and the human rights of Indigenous Peoples also emerges from the UN Human Rights Committee’s views in the case Billy et al v Australia. The communication was filed by eight First Nations Peoples and their children, who are nationals of Australia and residents of the Torres Strait region (islands to the north of Australia). The authors alleged that the measures (or lack thereof) adopted by Australia with respect to both mitigation and adaptation were insufficient to protect their rights to life (Article 6 ICCPR) and respect for family and home (Article 17 ICCPR) and their cultural rights (Article 27 ICCPR) (among others) from the impacts caused by climate change, in particularly due to sea level rise. In its decision, the Committee focused upon the conduct of Australia with respect to adaptation, finding that there was ‘delay in seawall construction with respect to the islands where the authors live’,¹⁴³ that climate change had led to a ‘reduction of marine resources used for food, and the loss of crops and fruit trees’,¹⁴⁴ and that the authors ‘experience anxiety and distress owing to erosion that is approaching some homes in their communities’¹⁴⁵ and gave evidence that ‘their lives have been adversely affected by flooding and inundation of their villages and ancestral burial lands’.¹⁴⁶ On this basis, the Committee concluded that:

the State party’s failure to adopt timely adequate adaptation measures to protect the authors’ collective ability to maintain their traditional way of life, to transmit to their children and future generations their culture and traditions and use of land and sea resources discloses a violation of the State party’s positive obligation to protect the authors’ right to enjoy their minority culture. Accordingly, the Committee considers that the facts before it amount to a violation of the authors’ rights under article 27 of the Covenant.¹⁴⁷

The Committee reached a similar finding with respect to the right to respect to family and home (Article 17 ICCPR). It did not uphold the alleged violation of the rights to life (Article 6 ICCPR), and did not consider it necessary to assess the other alleged violations.

By way of orders, the Committee outlined Australia’s obligation to provide the authors with an ‘effective remedy’ (under Article 2(3)(a) ICCPR), which it indicated requires Australia to:

provide adequate compensation, to the authors for the harm that they have suffered; engage in meaningful consultations with the authors’ communities in order to conduct needs assessments; continue its implementation of measures necessary to secure the communities’ continued safe existence on their respective islands; and monitor and review the effectiveness of the measures implemented and resolve any deficiencies as soon as practicable.¹⁴⁸

The Committee’s views also suggest that the forced relocation of Indigenous Peoples due to the impact of climate change may constitute a violation of their rights under the ICCPR.¹⁴⁹ This decision highlights the need for affirmative measures to ensure the rights of Indigenous Peoples and other vulnerable groups who are disproportionately affected by climate impacts.

In addition to the developments in climate litigation outlined earlier, the Philippines Human Rights Commission’s report on the Carbon Majors inquiry documented a range of human rights violations caused by climate change.¹⁵⁰ In relation to the Carbon Majors’ assertion that the Commission lacked jurisdiction to investigate their responsibility for climate change-related human rights violations, the Commission stated: ‘Stripped of legal niceties, the contentious issue was that our Commission, or, indeed the Philippine State … may only inquire into the conduct of corporate entities operating within Philippine territory, even if the corporations’ operations outside our territory were negatively impacting the rights and lives of our people. We cannot accept such a proposition.’¹⁵¹ Thus, based on the Commission’s constitutional mandate ‘to investigate and inquire into allegations of human rights violations suffered by our people’, the Commission found that it had jurisdiction, and the communication was admissible.¹⁵² The Commission further made important findings on non-economic losses, stating how climate change impacts ‘dehumanise’ the human person as ‘the combination of loss of lives, deprivation of basic needs, material loss, emotional trauma and hopelessness that these survivors experience strip them of their dignities’.¹⁵³

The inquiry’s findings reflect evidence from survivors of Super Typhoon Haiyan, one of the strongest storms ever recorded.¹⁵⁴ For example, one individual recounted how ‘one moment people were reaching above the water, fighting for their lives, and the next moment, they were gone’.¹⁵⁵ The Commission found that these human rights impacts were directly linked to the conduct of the Carbon Majors, which are not only responsible for the lion’s share of atmospheric emissions but also ‘engaged in wilful obfuscation of the climate science, which has prejudiced the right of the public to make informed decisions about their products’.¹⁵⁶ This responsibility for climate change and related human rights impacts gave rise to a duty to ‘provide for or cooperate in the remediation of those impacts’;¹⁵⁷ an obligation which extends to ‘all business enterprises in each of the Carbon Majors’ respective value chains’.¹⁵⁸ Furthermore, the Commission recommended that States ‘fulfil climate finance commitments and device new mechanisms for loss and damage from climate change-related events’ including to ‘compensate victims’.¹⁵⁹

All in all, the inquiry as a whole can be viewed as a form of emerging best practice as it has generated the world’s largest and most comprehensive body of formal eyewitness and expert testimonies, documentary evidence, and legal analysis relating to responsibility for climate loss and damage, with the report synthesising and drawing normative conclusions from these sources. While the report as such is not binding, the Commission’s analysis could inspire courts around the world to address questions of responsibility for loss and damage through the lens of human rights. Moreover, it is likely to inspire further development of cases focused on the responsibility of private actors such as fossil fuel companies for contributing to climate change-related loss and damage. The report itself indicates an emerging recognition of the need for reparations and compensation for loss and damage suffered because of climate change, and suggests that the legal landscape for climate justice is gradually shifting.

In summary, emerging jurisprudence in climate litigation and the recognition of the impacts of climate change on human rights demonstrate a growing understanding that climate change is not only an environmental problem but also a human rights issue. This understanding has important legal implications. As the following sections will show, judges around the world are starting to clarify and enforce human rights obligations relating to climate change so that human rights are effectively protected in the face of climate change.

7.4.3 Recognition of the State’s Obligations in the Context of Climate Change

On the basis of the harm posed by climate change, courts and UN treaty bodies have recognised that States must adopt a wide range of actions in order to protect human rights.¹⁶⁰ This position reflects emerging best practice as it demonstrates an understanding of the ambition necessary to address the expansive nature of climate change within the human rights sphere.

One can find this emerging best practice in the 2019 UN joint statement on human rights and climate change referenced in the previous subsection.¹⁶¹ The statement is significant as it comes from five different treaty bodies with an interest in human rights: the Committee on the Elimination of Discrimination against Women, the Committee on Economic, Social and Cultural Rights, the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, the CRC, and the Committee on the Rights of Persons with Disabilities. The obligation is articulated as follows:

Failure to take measures to prevent foreseeable harm to human rights caused by climate change, or to regulate activities contributing to such harm, could constitute a violation of States’ human rights obligations. In order for States to comply with their human rights obligations, and to realize the objectives of the Paris Agreement, they must adopt and implement policies aimed at reducing emissions, which reflect the highest possible ambition, foster climate resilience and ensure that public and private investments are consistent with a pathway towards low carbon emissions and climate resilient development.¹⁶²

The statement, moreover, outlines developed countries’ human rights obligations with respect to providing financial aid to developing States. This includes, ‘[a]s part of international assistance and cooperation towards the realization of human rights’, support for ‘adaptation and mitigation efforts in developing countries by facilitating transfers of green technologies and by contributing to financing climate mitigation and adaptation’.¹⁶³

As discussed earlier, the UN Human Rights Committee’s views in the case Billy et al v Australia represent emerging best practice with respect to the obligations of States regarding climate change adaptation.

UN treaty bodies have also analysed States’ human rights obligations regarding the use of fossil fuel reserves,¹⁶⁴ including as part of dialogues with States during their periodic reviews. For example, in 2020, the Committee on Economic Social and Cultural Rights recommended that Norway ‘reconsider its decision to increase oil and natural gas exploitation and take its human rights obligations as a primary consideration into its natural resource exploitation and export policies’.¹⁶⁵

At the domestic level, several national courts have articulated States’ human rights obligations regarding climate change mitigation through GHG emissions reductions.¹⁶⁶ For instance, in Urgenda, the Dutch Supreme Court found that ‘no other conclusion can be drawn but that the State is required pursuant to the rights to life and to private and family life under Articles 2 and 8 ECHR to take measures to counter the genuine threat of dangerous climate change’,¹⁶⁷ and that such measures must be ‘reasonable and suitable’, and consistent with ‘due diligence’.¹⁶⁸ The Court held that the State had an individual responsibility to mitigate climate change based on its commitments under the UNFCCC, the ‘no harm’ principle contained therein, and principles of proportionate liability under international and national law. The Court also drew on provisions of the UNFCCC and the Paris Agreement – including the principles of equity and common but differentiated responsibilities and respective capacities (CBDR-RC) – to formulate the State’s duty to contribute its ‘fair share’ of global emissions reductions,¹⁶⁹ as follows:¹⁷⁰ ‘The UNFCCC is based on the idea that climate change is a global problem that needs to be solved globally. Where emissions of greenhouse gases take place from the territories of all countries and all countries are affected, measures will have to be taken by all countries. Therefore, all countries will have to do the necessary.’¹⁷¹ Likewise, the German Constitutional Court in Neubauer analysed the alleged failure of the State to reduce GHG emissions in the short-term as a potential violation of the State’s obligation to protect the constitutional rights to life and health (among others), as well as its obligation to refrain from disproportionately restricting the plaintiffs’ constitutional freedoms through future drastic GHG emission reductions. The Court determined that, pursuant to existing constitutional jurisprudence, ‘[t]he state’s duty of protection [of fundamental rights] … includes the duty to protect life and health against the risks posed by climate change’.¹⁷² The Court ultimately upheld the plaintiffs’ challenge on the basis that the legislator’s proposed reduction of GHG emissions violated the plaintiffs’ fundamental freedoms by effectively offloading the burden to reduce emissions onto future generations.¹⁷³

Other important mitigation cases concern the protection of carbon sinks, most notably forests, or other ecosystems essential to climate protection. Perhaps the most well-known success in this category is Future Generations, in which the Supreme Court of Colombia granted the youth plaintiffs an order on the Government of Colombia to formulate and implement an ‘intergenerational pact for the life of the Colombian Amazon’ to adopt measures aimed at reducing deforestation and GHG emissions to zero.¹⁷⁴ And in Sheikh Asim Farooq v Federation of Pakistan etc., the Lahore High Court granted an order requesting the Government of Pakistan to adopt steps to increase the forest cover to 20–25 per cent in order to achieve a balanced economy.¹⁷⁵ Further, in Pro Public, the petitioners sought an order declaring the Godavari area as a prohibited area for mineral activities and to establish the area as an Environmental Protection Area pursuant to national laws. The Court agreed on the first count while ruling on the second count that a committee be established to determine if a designation of the area as protected is appropriate.¹⁷⁶

Crucially, in all of these instances, national courts and UN treaty bodies have determined that States’ human rights obligation exists notwithstanding that climate change is a global problem, which cannot be solved by any individual country.¹⁷⁷ The Dutch Supreme Court in Urgenda, for instance, determined that the State must do ‘its part’ in order to prevent dangerous climate change, and expressly rejected the State’s defence that its emissions were negligible in absolute terms. The German Constitutional Court in Neubauer similarly found: ‘The fact that the German state is incapable of halting climate change on its own and is reliant upon international involvement because of climate change’s global impact and the global nature of its causes does not, in principle, rule out the possibility of a duty of protection arising from fundamental rights.’¹⁷⁸ Finally, on the issue of States’ human rights obligations regarding climate-induced displacement, emerging best practice can be distilled from the UN Human Rights Committee’s views on Teitiota v New Zealand. As discussed earlier, this case resulted from New Zealand’s denial to grant asylum to the author despite his assertions that climate change had made his home country, Kiribati, uninhabitable. In the case before the UN Human Rights Committee, the author sought a declaration that his right to life had been violated because of this denial and his subsequent deportation to Kiribati.¹⁷⁹ To support this claim, the author presented evidence that sea level rise in Kiribati resulting from climate change had created scarcity of habitable space, resulting in violent land disputes, and environmental degradation including saltwater contamination of the freshwater supply.

While the Human Rights Committee did not find a violation of the author’s rights, it did make an important pronouncement that represents emerging best practice. That is, States can incur international responsibility for returning individuals who face life-threatening climate impacts in their home States.¹⁸⁰ As Committee member Laki points out, this recognition reflects ‘a significant step … toward the recognition of climate refugees, especially as regards non refoulement obligations under human rights law and the ICCPR’ while also highlighting the importance of international assistance to States adversely affected by climate change.¹⁸¹ The decision could therefore serve as a stepping-stone for the realisation of the right to a remedy for those who have suffered climate losses.¹⁸²

7.5 Replicability

Replicability stands as a pivotal concern in the evolution of the field of rights-based climate litigation. The core question with regard to replicability is to what extent and how the legal principles and reasoning developed in one jurisdiction can be replicated in others, and to what extent they are context- or jurisdiction-specific.

An analysis of existing judicial practice suggests that rights-based reasoning can often be replicated across jurisdictions. The Urgenda decision from the Dutch courts serves as a quintessential illustration. Since the first decision in 2015, courts around the world have relied upon the principles established in the Urgenda decisions within their own climate case adjudications. This includes judiciaries in France, Belgium, Germany, and Ireland recognising a number of the central tenets of the Urgenda decisions. In every instance, the courts found that the State had failed to comply with its legal obligations and that existing legal standards and scientific evidence could be used to assess compliance. These cases follow earlier decisions of the Supreme Courts in Nepal and Colombia, which applied similar principles and found the States in breach of their human rights obligations.

Further instances of replicability of rights-based reasoning across jurisdictions include the Leghari decision in Pakistan, which has been cited in courts in Brazil and the Philippines.¹⁸³ The decision of the UN Human Rights Committee in the case of Teitiota v New Zealand has also been cited in a number of subsequent cases, including by the Administrative Court of Paris in its decision in Grande-Synthe v France,¹⁸⁴ while the Supreme Court of Norway has cited the Urgenda decision in People v Arctic Oil.¹⁸⁵ These examples demonstrate that the principles established in one jurisdiction can be applied and relied upon in other jurisdictions, and thereby contribute to the development of a consistent and coherent body of international climate law.

At the same time, judges have found it important to highlight certain differences between jurisdictions and have insisted that legal principles and reasoning may need to be adapted to the specific legal and social context. For example, in the Philippines, the Human Rights Commission’s report on the Carbon Majors inquiry found that the specific historical and social context of the country, including its high vulnerability to climate change impacts, made it necessary to develop a distinct approach to rights-based climate litigation.¹⁸⁶ Similarly, the Billy et al v Australia case before the UN Human Rights Committee raised specific issues relating to the impacts of climate change on Indigenous Peoples in Australia, which required a nuanced analysis of the legal principles and standards applicable to the case.¹⁸⁷ These examples suggest that although the core legal principles and reasoning developed in one jurisdiction are often replicable, it is nevertheless important for judges to consider the specific legal and social context of each case and adapt their reasoning accordingly.

Furthermore, the replicability of rights-based reasoning is not limited to climate litigation alone. Lessons learned from the application of rights-based reasoning in climate cases can be applied to other areas of law, such as biodiversity and environmental protection. The recognition of the interconnectedness of human rights and the environment has the potential to shape legal practice in other areas of law and contribute to the development of a more holistic and integrated approach to environmental protection.

In conclusion, the replicability of rights-based reasoning across jurisdictions is a crucial factor in the development of a consistent and coherent body of ‘transnational’ climate law. While appreciating the nuances inherent in differing legal and social contexts, the application of fundamental legal principles and reasoning can catalyse a more comprehensive and integrated approach towards climate change mitigation and adaptation.

7.6 Conclusion

Rights-based climate litigation has emerged as a crucial instrument in holding States and corporations accountable for their respective human rights obligations in the face of climate change. The recognition of the intricate link between human rights and climate change has progressively permeated institutional frameworks, leading to its invocation of human rights in climate litigation at the national, regional, and international levels. An increasingly substantial body of legal precedent now underscores the potential of litigation to drive climate action while safeguarding human rights.

This chapter has provided a comprehensive and discerning overview of prevailing trends and emerging best practices in rights-based climate litigation. We reviewed the diverse subjects, fora, and remedies involved in such cases. Although jurisdictional disparities exist, the growing corpus of jurisprudence demonstrates the adaptability and replicability of rights-based reasoning, thereby contributing to the establishment of a consistent and coherent framework for ‘transnational’ climate law.

The expanding body of jurisprudence in rights-based climate litigation, alongside the ongoing refinement of the interplay between climate change and human rights, underscores the vital role played by courts and tribunals in holding governments and corporations accountable for their actions – or lack thereof – in addressing the climate crisis. As judicial bodies assume this critical role, they also shape the evolution of climate law, both within individual jurisdictions and across borders. We hope that the roadmap presented in this chapter will be leveraged to further enhance the legal robustness and efficacy of rights-based climate litigation, ensuring that it continues to drive meaningful change while safeguarding human rights.

8 Extraterritoriality

Mark Gibney *

8.1 Introduction

There are at least two ways in which ‘territory’ plays an essential role in issues related to climate change. The first involves the Trail Smelter principle,¹ reaffirmed in Principle 21 of the Stockholm Declaration,² which requires states to ensure that activities within their territory and control do not cause damage to those who are outside their borders. This case revolved around smelter factories in Canada that were emitting pollutants which landed in the United States (US). In response, the US brought a case against Canada and was successful in an arbitration hearing. According to the Tribunal:

under the principles of international law, as well as the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.³

At first glance, applying the reasoning presented in Trail Smelter to greenhouse gas (GHG) emissions might seem a natural extension of the principle. There are, however, key differences between the localised pollution in Trail Smelter and GHG emissions that complicate the step. Not only does every country produce GHG, albeit at vastly different levels, but all states have already been negatively affected by ever-increasing levels of carbon dioxide and methane in the atmosphere. Furthermore, while the pollutants in Trail Smelter could be traced back to the operation of the smelter plants in Canada, there is much less certainty with GHG emissions. Or to use a concrete example, and as a reversal of the Trail Smelter situation, the GHG emissions now harming Canadian citizens are not only produced within Canada but from any number of other countries, including the US.⁴

The second way in which ‘territory’ plays an important role in relation to climate litigation is with respect to the scope of human rights obligations. Although human rights are declared to be ‘universal’, the dominant interpretation of international human rights law has been ‘territorial’ in scope, which is to say that a state’s obligations extend only as far as its own national borders. There are two main reasons for this reading of international human rights law. The first is the international law principle that states are to honour the sovereignty of other states. In that way, a state that seeks to protect the human rights of the citizens of another state might be viewed as interfering with the sovereignty of that other state.

The second reason for the predominance of the ‘territorial’ interpretation of international human rights law comes from the language of the law itself. Nearly all human rights instruments make reference to either ‘territory’ or ‘jurisdiction’, and oftentimes both. One example is the International Covenant on Civil and Political Rights (ICCPR), which provides: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant ….’.⁵ Yet, even human rights treaties that make no mention of either ‘territory’ or ‘jurisdiction’ – for example, the International Covenant on Economic, Social and Cultural Rights (ICESCR)⁶ – are commonly interpreted in a ‘territorial’ manner.

One of the biggest hurdles facing courts is that while climate change is extraterritorial in the sense that GHG emissions do not respect national borders, both domestic and international law are generally tethered to national territory. As John Knox, the first Independent Expert (and later Special Rapporteur) on Human Rights and the Environment, has pointed out:

The more fundamental problem with applying environmental human rights principles to climate change is that the principles were developed primarily to address environmental harm that does not cross international borders. Almost all of the regional jurisprudence, in particular, arises from cases in which the benefits and costs of the environmental harm are felt within the domestic jurisdiction of one State.⁷

Perhaps not surprisingly, a substantial portion of the climate change cases to date have been ‘domestic’ or ‘internal’ in the sense that they involve citizens of one state bringing a suit against their own government seeking a judicial order to reduce GHG emissions. Urgenda is typical of this approach.⁸ In this case a group of Dutch citizens and civil society organisations brought a suit against the government of the Netherlands, and in a landmark ruling the Supreme Court ordered the Dutch government to reduce its GHG emissions. Thus, for all its novelty and the important role it has played as a legal precedent, Urgenda is consistent with a ‘territorial’ reading of international human rights law.

The present chapter explores how, based on emerging best practice, courts may be able to go beyond the traditional, territorial understanding and grapple with the ‘extraterritorial’ aspects of climate change that have arisen in litigation to date. Noting the ‘grave threats’ to the enjoyment of human rights due to transboundary environmental harm, Knox acknowledges the necessity of addressing climate change from a transnational perspective, but also the uncertainty that may arise in this context. ‘There is no obvious reason why a State should not bear responsibility for actions that otherwise would violate its human rights obligations, merely because the harm was felt beyond its borders. Nevertheless, the application of human rights obligations to transboundary environmental harm is not always clear.’⁹ Judicial practice can play a critical role in reducing this uncertainty and clarify states’ obligations in the context of advisory proceedings or dispute settlements.

8.2 The Extraterritorial Dimension

Section 8.2 is divided into three sub-sections broken down by geographic scope. The first sub-section (Section 8.2.1) provides examples of how domestic courts have addressed various extraterritorial issues. The second sub-section (Section 8.2.2) focuses on regional human rights institutions, with a particular focus on the 2017 Advisory Opinion of the Inter-American Court of Human Rights (IACtHR). The third and final sub-section (Section 8.2.3) moves the analysis to the international plane by examining how the International Court of Justice (ICJ) has approached transnational environmental claims.

8.2.1 Domestic

As the term indicates, ‘extraterritorial’ refers to something that occurs outside of a state’s own national borders. Yet, extraterritorial issues can arise in a number of ways. The present section provides examples of how domestic courts in three countries – Germany, the Netherlands, and Norway – have addressed different kinds of extraterritorial issues. Neubauer et al v Germany involves a situation where foreign nationals brought a claim against a state other than their own. In Milieudefensie and Others v Royal Dutch Shell, while the claimants are all citizens of one state, the judicial order applies domestically as well as internationally. Finally, People v Arctic Oil addresses the issue of whether a state’s responsibility to protect the environment is to be limited to the GHG emissions produced domestically or if it should include extraterritorial emissions as well.

8.2.1.1 Foreign Plaintiffs

Neubauer¹⁰ is a case brought by a group of German citizens, joined by claimants from Bangladesh and Nepal, against the German state on the grounds that the government’s reduction target of 55 per cent by the year 2030 will be insufficient to stay within the country’s carbon budget, thereby necessitating the adoption of drastic measures that would violate the fundamental freedoms of all Germans alive in 2030 and thereafter. Taking an intergenerational approach, the Federal Constitutional Court held that: ‘one generation must not be allowed to consume large portions of the CO₂ budget while bearing a relatively minor share of the reduction effort, if this would involve leaving subsequent generations with a drastic reduction burden and expose their lives to serious losses of freedom’.¹¹ The Court ordered the legislature to set clear reduction targets from 2031 onward to the end of 2022. And in response to the ruling, federal lawmakers passed new legislation that requires, at a minimum, a reduction of 65 per cent in GHG emissions from 1990 levels by 2030.

Aside from the result itself, the most noteworthy aspect of Neubauer is that the Nepalese and Bangladeshi plaintiffs were given standing. The Court did draw a distinction, however, between the German and foreign claimants. Because the state’s breach stemmed from the restrictive measures that would be needed to drastically reduce Germany’s GHG emissions, as opposed to the impacts of climate change generally, the Court concluded that the complainants living in Bangladesh and Nepal would not be affected in their own freedoms in the same way as German citizens. According to the Court:

The situation is different with regard to the complainants … who live in Bangladesh and in Nepal. They are not individually affected in this respect. In their case, it can be ruled out from the outset that a violation of their fundamental freedoms might arise from potentially being exposed someday to extremely onerous climate action measures because the German legislator [sic] is presently allowing excessive amounts of greenhouse gas emissions with the result that even stricter measures would then have to be taken in Germany in the future. The complainants … live in Bangladesh and Nepal and are thus not subject to such measures.¹²

In addition, the Court drew a distinction between adaptation measures undertaken in Germany as opposed to those the German government might attempt to take elsewhere:

With regard to people living abroad, the German state would not have the same options at its disposal for taking any additional protective action. Given the limits of German sovereignty under international law, it is practically impossible for the German state to afford protection to people living abroad by implementing adaptation measures there. Rather it is the task of the states concerned to select and implement the necessary measures.¹³

While this reading of international law is certainly correct, it leaves the question open as to whether, if Nepal, Bangladesh, and other states harmed by German GHG emissions were to demand assistance in the form of adaptation measures or otherwise, Germany would have a legal obligation to provide it.¹⁴

8.2.1.2 Extraterritorial Judicial Orders

Milieudefensie,¹⁵ handed down by the Hague District Court in 2021, illustrates a different kind of extraterritorial issue. In the aftermath of Urgenda, a group of civil society organisations filed suit against Royal Dutch Shell (RDS), a Dutch-based multinational corporation. The District Court ruled in favour of the plaintiffs and ordered a 45 per cent reduction of the company’s GHG emissions by 2030 against 2019 levels.

In some respects, Milieudefensie is a classic ‘domestic’ case. The plaintiffs consisted of several Dutch civil society organisations, while the court excluded ActionAid (an international non-governmental organisation) from the proceedings on the grounds that its activities were not wholly geared toward Dutch citizens and interests. The court explained its position:

The court is of the opinion that the interests of current and future generations of the world’s population, as served principally with the class actions, is not suitable for bundling. Although the entire world population is served by curbing dangerous climate change, there are huge differences in the time and manner in which the global population at various locations will be affected by global warming caused by CO₂ emissions. Therefore, this principal interest does not meet the requirement of ‘similar interest’ under [Dutch law].¹⁶

In addition to the Dutch claimants, the defendant, RDS, is a Dutch-based multinational corporation. Thus, all of the parties involved are Dutch. This raises the question of whether the court would have arrived at a similar result if suit had also been brought against a foreign corporation, such as Total (France) or Exxon (US), two oil companies that conduct a considerable amount of business in the Netherlands and elsewhere.

Leaving this issue aside, for the purposes of our present discussion, the most noteworthy aspect of this case is that the court’s order applied not only to RDS’s operations within the Netherlands but the company’s entire worldwide operations. Furthermore, the order applied not only to RDS’s own emissions, but the emissions from the use by other entities of the oil RDS produces. The ruling therefore raises the additional question of whether the Dutch District Court – or any domestic court for that matter – can monitor and enforce a decree with such extraterritorial applications.

8.2.1.3 Extraterritorial GHG Emissions

Arctic Oil,¹⁷ decided by the Norwegian Supreme Court in late December 2020, presents yet another type of extraterritorial issue. The plaintiffs consisted of various environmental groups challenging oil drilling licences that had been issued by the Norwegian government in 2013 on the grounds that such actions violated Article 112(1) of the Norwegian Constitution, which provides: ‘Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.’ By way of background, Norway’s GHG emissions, at least domestically, are relatively small.¹⁸ In addition, under the Norwegian Climate Act of 2017, the government is legally obligated to achieve a 40 per cent reduction of GHG emissions by the year 2030. On the other hand, as the third largest exporter of natural gas and the fifteenth largest oil exporter, Norway’s GHG emission footprint is enormous, and it is estimated that emissions resulting from exported petroleum are 95 per cent higher than territorial emissions in Norway.¹⁹

The Oslo District Court sided with the government Ministry on the grounds that the national Parliament had considered, but rejected, several proposals to review the previous licensing decision in light of Norway’s accession to the 2015 Paris Agreement.²⁰ According to the District Court, the involvement of the Parliament was sufficient to indicate that the constitutional duty to protect environmental rights had been fulfilled, holding that ‘[e]missions of CO₂ abroad from oil and gas exported from Norway are irrelevant when assessing whether the Decision entails a violation of Article 112’.²¹

The plaintiffs appealed the decision to the Court of Appeals, arguing that the District Court had interpreted Article 112 of the Constitution too narrowly. Finding that Norway is only responsible for GHG emissions emitted on Norwegian territory, they argued, wrongly limits the territorial scope of the government’s duty to guarantee the right to a healthy environment. The Court of Appeals upheld the District Court’s ruling,²² although it interpreted Article 112 as requiring that environmental damage from exported petroleum products be considered. However, the Court of Appeals held that the granting of exploration licences, by itself, will not necessarily lead to an increase of GHG emissions.

This ruling was appealed to the Norwegian Supreme Court where the plaintiffs added to their previous complaint that the granting of these licences would also violate the right to life (Article 2) and the right to respect for private and family life (Article 8) of the European Convention on Human Rights (ECHR), which had been the basis of the Dutch Supreme Court’s ruling in Urgenda. Although the Norwegian Supreme Court readily recognised the severe nature of climate change and acknowledged that Article 112 protects citizens from environmental and climate harms, it also viewed the role of the judiciary as being quite limited.

In terms of the geographic scope of Article 112, the Supreme Court took what might best be described as a ‘quasi-territorial’ approach:

A final question is whether it is relevant to consider greenhouse gas emissions and effects outside Norway. Is it only emissions and effects on Norwegian territories that are relevant under Article 112 of the Constitution, or must the assessment also include emissions and effects in other countries? Article 112 does not provide general protection against actions and effects outside the realm. However, if Norway is affected by activities taking place abroad that Norwegian authorities may influence directly on or take measures against, this must also be relevant to the application of Article 112. An example is combustion of Norwegian-produced oil or gas abroad, when this causes harm also in Norway.²³

And later: ‘When it comes to greenhouse gas emissions from combustion abroad after Norwegian petroleum export, I believe one must accept that the Storting and the Government build their Norwegian climate policy on the division of responsibilities between states in accordance with international agreements. Here, the clear principle is that each state is responsible for combustion on its own territory.’²⁴ The Norwegian Supreme Court’s narrow interpretation of their extraterritorial obligations is a setback for climate litigation in Norway, but jurisprudence from other European states has shown the possibilities for a more global approach to emissions, even on the national level. This section has presented examples of cases in which domestic courts addressed various extraterritorial issues related to climate change. Neubauer dealt with the inclusion of foreign plaintiffs and Milieudefensie with the extraterritorial application of the judicial order. Finally, Arctic Oil addressed the issue of whether a government was obligated to protect against environmental harms from oil and gas produced domestically but which would be burned in other lands. Although the rulings differ in their interpretations, the courts, particularly in Milieudefensie, have opened the door to more inclusive consideration of what constitutes a state’s extraterritorial obligations.

8.2.2 Regional

The 2017 Advisory Opinion by the IACtHR has already achieved landmark status.²⁵ The Advisory Opinion resulted from a case concerning various construction projects in wetland areas across Colombia that would have posed a serious environmental impact on the Wider Caribbean Region. Colombia, in its request for the opinion, suggested that ‘this problem is of interest not only to the States of the Wider Caribbean Region whose coastal and insular population may be directly affected by the environmental damage suffered by this region, but also to the international community’.²⁶ The Court responded by noting that ‘this Opinion constitutes one of the first opportunities that the Court has had to refer extensively to the State obligations arising from the need to protect the environment under the American Convention’.²⁷

The essential issue addressed by the Court is the geographic scope of states’ human rights obligations. Article 1 of the American Convention on Human Rights provides:

The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.²⁸

Unlike the European Court of Human Rights (ECtHR), which has equated ‘jurisdiction’ with ‘territory’, the IACtHR unequivocally took the position that the two are not coterminous.

The Court recalls that the fact that a person is subject to the jurisdiction of a State does not mean that he or she is in its territory. According to the rules for the interpretation of treaties, as well as the specific rules of the American Convention […] the ordinary meaning of the word ‘jurisdiction’, interpreted in good faith and taking into account the context, object and purpose of the American Convention, signifies that it is not limited to the concept of national territory, but covers a broader concept that includes certain ways of exercising jurisdiction beyond the territory of the State in question.²⁹

Applying this principle to environmental harm, the Court ruled that:

In cases of transboundary damage, the exercise of jurisdiction by a State of origin is based on the understanding that it is the State in whose territory or under whose jurisdiction the activities were carried out that has the effective control over them and is in a position to prevent them from causing transboundary harm that impacts the enjoyment of human rights of persons outside its territory. The potential victims of the negative consequences of such activities are under the jurisdiction of the State of origin for the purposes of the possible responsibility of that State for failing to comply with its obligation to prevent transboundary damage. That said, not every negative impact gives rise to this responsibility…³⁰

The Court then outlined an approach to jurisdiction that is not purely based on geographic boundaries:

Accordingly, it can be concluded that the obligation to prevent transboundary environmental damage or harm is an obligation recognized by international environmental law, under which States may be held responsible for any significant damage caused to persons outside their borders by activities originating in their territory or under their effective control or authority. It is important to stress that this obligation does not depend on the lawful or unlawful nature of the conduct that generates the damage, because States must provide prompt, adequate and effective redress to the persons and States that are victims of transboundary harm resulting from activities carried out in their territory or under their jurisdiction, even if the action which caused this damage is not prohibited by international law. That said, there must always be a causal link between the damage caused and the act or omission of the State of origin in relation to activities in its territory or under its jurisdiction or control.³¹

Thus, rather than defining the limits of a state’s jurisdiction by its physical borders, the IACtHR allows a state’s actions to determine the extent of jurisdiction. If a state’s actions or omissions cause harm that impedes the enjoyment of human rights of people in another territory, that original state is found to have effective control over those people and is therefore considered to exercise jurisdiction over them.

The importance of such an extraterritorial interpretation of jurisdiction cannot be overstated with regard to climate litigation. It should be noted that the IACtHR’s Advisory Opinion comes in contrast to the approach taken by the ECtHR. As the Committee on the Rights of the Child (CRC) noted in Sacchi et al v Argentina et al, discussed later, the approaches may not be compatible, and the IACtHR’s approach to jurisdiction seems the most suitable for addressing climate-related human rights harm.³² Similar to the American Convention, the ECHR references ‘jurisdiction’ but not ‘territory’. Article 1 of the ECHR provides: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in [the Convention]’.³³ The original draft of Article 1 did include the term ‘territory’, but this was removed from the final draft.

Prior to 2001, both the European Commission for Human Rights and the ECtHR had interpreted the Convention in an extraterritorial fashion.³⁴ However, beginning with the ECtHR’s ruling in Bankovic et al v Belgium et al,³⁵ the European Court has given the Convention a ‘territorial’– or what it has described as a ‘primarily’³⁶ or ‘essentially’³⁷ territorial – interpretation. Under this approach, the Convention is intended to only protect those within the territorial borders of the contracting states. At the same time, the ECtHR has extended the protections of the Convention to non-contracting states in two circumstances. First, when agents of a European state operating outside of the territorial borders of that state exercise some degree of personal control over a foreign national. Second, when one of the European powers is exercising ‘effective control’ over some portion of the land mass of a foreign state. The ECtHR’s territorial interpretation in Bankovic and in subsequent cases faced a great deal of criticism, including from within the court’s own ranks, denouncing the rulings as unprogressive and inconsistent.³⁸ Although the court has begun returning to their pre-Bankovic interpretation, the IACtHR remains ahead of the European court in clearly outlining extraterritorial obligations.

The IACtHR explained its divergence in interpretation from ECtHR case law by underscoring how climate change litigation differs from the kinds of extraterritorial cases taken up by its European counterpart. Cases before the ECtHR tend to involve ‘military action or actions by State security forces that indicate “control”, “power” or “authority” in the execution of the extraterritorial conduct’.³⁹ Contrasting these cases with the environmental issue before it, the IACtHR stated ‘these are not the situations described by the requesting State and do not correspond to the specific context of environmental obligations referred to in the request for an advisory opinion’.⁴⁰

The IACtHR Advisory Opinion already has played an important role in the climate change debate as evidenced by the Sacchi decision issued by the United Nations (UN) CRC, which will be discussed later. Whether it will also serve as a guiding precedent if and when other regional adjudicatory bodies take this issue up remains to be seen.

8.2.3 International

To date, the ICJ has not issued a ruling on climate change specifically. However, in dealing with transnational environmental cases it has reinforced the customary law principle that one state is not to use its territory to bring about harm to some other state. An example of the Court’s jurisprudence on this matter was Pulp Mills,⁴¹ which involved a dispute between Argentina and Uruguay over Uruguay’s decision to build a pulp-processing plant on the river Uruguay. Citing two of its landmark decisions, the ICJ held that:

…the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory. It is ‘every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’ (Corfu Channel (United Kingdom v Albania)). A State is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State. This Court has established that this obligation ‘is now part of the corpus of international law relating to the environment’ (Legality of the Threat or Use of nuclear weapons, Advisory Opinion).⁴²

In 2018, the ICJ reaffirmed the principle of transboundary harm in its first environmental compensation claim, Costa Rica v Nicaragua.⁴³ The case originated from a territorial dispute involving a three-kilometre area of wetlands in the border area between the two countries. In 2015, the Court had decided the sovereignty question in favour of Costa Rica, thereby rendering Nicaragua’s presence on this land unlawful, giving rise to Costa Rica’s claims to reparations. When the two countries were not able to reach agreement on this matter, the issue was brought before the Court.

Two aspects of this case are particularly noteworthy with regard to climate change litigation. One involves the lack of certainty in determining damages, although this did not deter the ICJ: ‘In respect of the valuation of damage, the Court recalls that the absence of adequate evidence as to the extent of material damage will not, in all situations, preclude an award of compensation for that damage’.⁴⁴

The second issue involves causation. The Court reaffirmed the principle that there must be a causal link between the wrongful act and the injury suffered,⁴⁵ and it also acknowledged the inherent problems in environmental damage claims due to the myriad of concurrent causes as well as the lack of scientific certainty in establishing the necessary causal link.⁴⁶ These caveats notwithstanding, the ICJ proceeded to issue a series of rulings in favour of Costa Rica, thus reaffirming the principle that a state is violating international law when it causes environmental harm in some other state.

8.3 Emerging Best Practices

As noted earlier, one of the biggest hurdles facing judges in this area is the disjuncture between climate change, which on one hand is widely recognised as a global phenomenon, and law that so often has been interpreted and applied in a territorial fashion, on the other. This chapter, however, identifies four emerging best practices that could serve to reconcile law with the global reality of climate change: 1) the growing recognition of extraterritorial obligations; 2) the issue of standing, especially the inclusion of more victims’ voices; 3) holding multinational corporations responsible; and 4) establishing greater accountability for the production of GHG emissions.

8.3.1 The Growing Recognition of Extraterritorial Obligations

Although human rights are declared to be ‘universal’, the obligation to protect and enforce these rights has in large part been territorially based. One of the more telling examples of this was a country study of Sweden conducted by Paul Hunt in his capacity as the Special Rapporteur on the Right to Health.⁴⁷ Sweden has long been recognised as one of the most ‘generous’ countries in the world in terms of the amount of foreign aid it provides per capita. However, when Hunt asked government officials whether Sweden, as a state party to the International Covenant on Economic, Social and Cultural Rights, particularly in light of the ‘international assistance and cooperation’ language in the treaty, was legally obligated to provide foreign aid, government officials demurred. In his report, Hunt took strong exception to this reading of human rights law: ‘If there is no legal obligation underpinning the human rights responsibility of international assistance and cooperation, inescapably all international assistance and cooperation is based fundamentally upon charity. While such a position might have been tenable 100 years ago, it is unacceptable in the twenty-first century.’⁴⁸ Despite the resistance of states to acknowledge their human rights obligations outside their own national borders, the ‘territorial’ interpretation of international human rights law is increasingly being challenged, if not discarded altogether. The 2017 IACtHR Advisory Opinion is a particularly salient example, where the Court held that a state that brings about harm to individuals in other lands is thereby exercising ‘jurisdiction’ over these individuals.

Similarly, the African Commission on Human and People’s Rights has interpreted the provision relating to the right to life in the African Charter on Human and People’s Rights as follows:

A State shall respect the right to life of individuals outside its territory. A State also has certain obligations to protect the right to life of such individuals. The nature of these obligations depends for instance on the extent that the State has jurisdiction or otherwise exercises effective authority, power, or control over either the perpetrator or the victim (or the victim’s rights) or exercises effective control over the territory on which the victim’s rights are affected, or whether the State engages in conduct which could reasonability be foreseen to result in an unlawful deprivation of life.⁴⁹

The UN treaty bodies have added their own authoritative interpretation of international human rights law as well.⁵⁰ The Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment 24 states ‘The extraterritorial obligation to respect requires States parties to refrain from interfering directly or indirectly with the enjoyment of the Covenant rights by persons outside their territories’.⁵¹ More recently, in October 2018, the CESCR released a statement on climate change affirming that states parties are required to respect, protect, and fulfil all human rights for all people and that ‘[t]hey owe such duties not only to their own populations, but also to populations outside their territories, consistent with … the [UN] Charter’.⁵²

Similarly, the Human Rights Committee (HRC) it its General Comment 36 (Right to Life) interpreted the term ‘jurisdiction’ in Article 2 of the ICCPR in functional terms, referring to the ability of one state to affect the ‘enjoyment’ of the right to life of a person living in another state:

A State party has an obligation to respect and to ensure the rights under article 6 [right to life] of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment the right to life it exercises power or effective control. This includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner.⁵³

In terms of climate change more specifically, in 2019 five UN human rights treaty bodies – responsible for, respectively, the Convention on the Elimination of All Forms of Discrimination Against Women, the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, and the ICESCR – issued the following joint statement: ‘State parties have obligations, including extra-territorial obligations, to respect, protect and fulfill all human rights of all people. Failure to take measures to prevent foreseeable human rights harm caused by climate change or to regulate activities contributing to such harm, could constitute a violation of States’ human rights obligations.’⁵⁴ Finally, special mention should be made of the CRC’s extensive analysis of the scope of states’ human rights obligations in its communication in Sacchi. The case involved sixteen children from five different states claiming that the respondents were responsible for perpetuating climate change through their own inaction and in so doing had acted in violation of the Convention on the Rights of the Child. Of particular note, the CRC adopted wholesale the IACtHR’s interpretation of the term ‘jurisdiction’:

Having considered the above, the Committee finds that the appropriate test for jurisdiction in the present case is that adopted by the Inter-American Court of Human Rights in its Advisory Opinion of the Environment and Human Rights. This implies that when transboundary harm occurs, children are under the jurisdiction of the State on whose territory the emissions originated for the purposes of article 5 (1) of the Optional Protocol if there is a causal link between the acts or omissions of the State in question and the negative impact on the rights of children located outside its territory, when the State of origin exercises effective control over the sources of the emissions in question. The Committee further considers that […] the alleged harm suffered by the victims needs to have been reasonably foreseeable to the State party at the time of its acts or omissions even for the purpose of establishing jurisdiction.⁵⁵

Despite the CRC’s expansive view of states’ human rights obligations, the Committee ultimately ruled that the communication was inadmissible on the grounds that the children had not exhausted domestic remedies in the relevant countries.

8.3.2 Standing

It is commonplace to refer to climate change as a global phenomenon in the sense that, in one manner or another, all states contribute to this problem. Yet, as noted by the UN Special Rapporteur on Human Rights and the Environment, three-quarters of global emissions are produced in only twenty states.⁵⁶ Unfortunately, those states that produce the lowest amounts of GHG emissions, while oftentimes bearing the brunt of the harms caused by climate change, typically have no seat at the table, both in political negotiations and in the judicial treatment of the issue.

In that vein, one of the emerging best practices is that standing requirements are being loosened, at least to some degree. Because of this, new voices (and new generations) are beginning to be heard, and even more importantly, more avenues for redress are being opened up as well. In the Neubauer case, the German plaintiffs were joined by litigants from Nepal and Bangladesh, and although the nature of the claim presented allowed the court to differentiate between these two groups, the more important consideration is that foreign nationals from the Global South were granted standing to pursue a claim against a state from the Global North.

Sacchi is another case in point. This communication to the CRC was made by sixteen children from somewhat geographically dispersed countries: Argentina, Brazil, France, Germany, and Turkey. In their communication, the children all claimed to be within the ‘jurisdiction’ of each of the other four states, which was not contested by the CRC. This raises the question that if these children were within the ‘jurisdiction’ of each of the other four states, there would be no reason why each one would not also be within the ‘jurisdiction’ of every country that produces GHG emissions – which is to say every country in the world.

The IACtHR’s expansive reading of the term ‘jurisdiction’ in its 2017 Advisory Opinion should also allow more voices to be heard and more states to be held accountable. Although the biggest shortcoming is that such claims can currently only be filed against other state parties to the American Convention, the trend of emerging case law suggests that more courts will be adopting similarly expansive views of jurisdiction.

8.3.3 Private Actors

Under international human rights law, states have three different sets of obligations. One is the obligation to respect human rights, which means that a state is not to violate human rights principles itself. The second is an obligation to protect human rights, which means that a state also has an obligation to ensure that private actors, such as multinational corporations, do not violate human rights standards. Finally, states have an obligation to fulfil human rights, which means that if individuals cannot protect their own human rights, the state has an obligation to offer such protection.

Within a state’s domestic realm, such obligations largely go unquestioned. However, the same is not true outside a state’s national borders. An issue that has been especially contentious is whether a state’s duty to protect extends beyond its territorial borders. This issue has commonly been raised in the context of harms caused by the actions or omissions of multinational corporations. In a situation where the ‘host’ state is either unable or unwilling to regulate the harmful behaviour of the corporation, does the ‘home’ state have a legal obligation to do so in its stead?

The UN Guiding Principles on Business and Human Rights (UNGP)⁵⁷ has taken the position that ‘States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction’.

The Maastricht ETO Principles,⁵⁸ however, have a much different interpretation of existing international law. According to these principles, not only does the ‘home’ state have a duty to act in such situations, but so do other states that can exert a ‘decisive influence’ over egregious corporate behaviour.

Although it is not possible to establish which of these two presents a sounder reading of international law, the UN treaty bodies – including the ICESCR,⁵⁹ the Committee interpreting the International Convention on the Elimination of All forms of Racial Discrimination (CERD),⁶⁰ and the CRC⁶¹ – are increasingly willing to recognise that a state’s obligation to protect extends outside its national borders. For example, in General Comment 36, the HRC determined that states’ obligations include regulation of activities by private actors, noting:

States must also take appropriate legislative and other measures to ensure that all activities taking place in whole or in part within their territory and in other places subject to their jurisdiction, but having a direct and reasonably foreseeable impact on the right to life of individuals outside their territory, including activities taken by corporate entities based in their territory or subject to their jurisdiction, are consistent with article 6 [right to life], taking due account of related international standards of corporate responsibility, and of the right of victims to obtain an effective remedy.⁶²

A slightly different question is whether multinational corporations have human rights obligations that are separate and distinct from the obligations of states. In Milieudefensie, the District Court relied extensively on the UNGP, particularly the second pillar: the obligation of corporations to ‘respect’ human rights. The Court explained the difference between state and non-state responsibilities:

The differences between states and businesses RDS emphasizes are expressed in the UNGP in the different responsibilities for states and businesses, between which no inevitable tension needs to exist – as follows from the quotation given by RDS. The responsibility of business enterprises to respect human rights, as formulated in the UNGP, is a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of States’ abilities and/or willingness to fulfill their own human rights obligations and does not diminish those obligations. And it exists over and above compliance with national laws and regulations protecting human rights. Therefore, it is not enough for companies to monitor developments and follow the measures states take; they have an individual responsibility.⁶³

The Court then underscored what a global standard of conduct for businesses looks like:

Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved. Tackling the adverse human rights impacts means that measures must be taken to prevent, limit and, where necessary, address these impacts. It is a global standard of expected conduct for all businesses wherever they operate…. [T]his responsibility of businesses exists independently of states’ abilities and/or willingness to fulfil their own human rights obligations and does not diminish those obligations. It is not an optional responsibility for companies. It applies everywhere, regardless of the local legal context …⁶⁴

The importance of Milieudefensie in the context of addressing climate change cannot be overstated. One of the major shortcomings of climate change litigation to date has been its piecemeal approach. As important as ‘domestic’ cases such as Urgenda happen to be, ultimately, they only address the climate change problem in one state. In contrast, the judicial order in a case like Milieudefensie applies not only to RDS’s domestic operations but to the entirety of its worldwide operations, and not only its own emissions but those from the use of its product by other entities.

The final point relates to the National Inquiry on Climate Change, a report issued by the Commission on Human Rights of the Philippines (CHRP) in 2022.⁶⁵ Not only did the Commission address the contributions to climate change of both state and non-state actors, it also included in the scope of its work foreign corporations that did not operate within the territorial boundaries of the Philippines, but whose overseas operations were nevertheless having a harmful effect on Filipino nationals. To quote at some length from the Commission report:

Many of the respondent oil companies also raised the issue of territoriality – they questioned the power of our Commission to inquire into their activities, since they did not operate within the territory of the Philippines. Stripped of legal niceties, the contention was that our Commission, or, indeed, the Philippine State, in general, may only inquire into the conduct of corporate entities operating within Philippine territory, even if the corporations’ operations outside our territory were negatively impacting the rights and lives of our people. We cannot accept such a proposition.⁶⁶

The report is particularly notable for the extraterritorial perspective that the CHRP champions. Under this progressive approach, protecting the human rights of Philippine citizens would take priority over rigid ‘technicalities’ and eventually become international law:

The CHRP is mandated by the Philippine Constitution with the duty to investigate and inquire into allegations of human rights violations suffering by our people. Our Commission decides on how it must perform its constitutional duty. And the performance of this duty is neither constrained by nor anchored on the principle of territoriality alone. The challenge of NHRIs [National Human Rights Institutions] is to test boundaries and create new paths; to be bold and creative, instead of timid and docile; to be more idealistic, or less pragmatic; to promote soft laws into becoming hard laws; to see beyond technicalities and establish guiding principles that can later become binding treaties; in sum, to set the bar of human rights protection to higher standards.⁶⁷

8.3.4 Establishing Greater Accountability for the Production of GHG Emissions

The final emerging practice is the growing understanding that a purely ‘domestic’ approach to climate change will only address a small segment of what truly is a global problem. One issue involves how contributions to GHG emissions are to be measured. Is it simply the GHG emissions that are produced within a state? Or, instead, should courts take a much broader approach?

This issue was raised directly in the Arctic Oil litigation, bringing forth a variety of judicial responses, none of which are satisfactory. The Oslo District Court took a ‘territorial’ approach, holding that although GHG emissions from exported oil and gas are some ninety-five times greater than that which are produced domestically, the government’s only responsibility relates to emissions produced within Norway’s territorial borders. The Court of Appeals took the opposite position. However, it ruled that it would be premature to consider extraterritorial GHG emissions from the granting of a drilling licence alone.

The Supreme Court attempted to split the difference by holding that the Norwegian government’s obligations generally only extend to the national borders of that country, but that it also had obligations regarding extraterritorial emissions that would have a negative effect on Norwegian citizens. One problem with this is that it would be difficult, if not impossible, to determine when this would arise. However, there is an even bigger problem, which is that all GHG emissions will have a negative effect on Norwegian citizens – and the citizens of all other states as well. The larger point is that Norway’s domestic GHG emissions do not come anywhere close to capturing the extent to which that country is contributing to climate change, and any judicial treatment of this issue must recognise and deal with this.

Fortunately, other institutions have begun to take a broader perspective. The Human Rights Commission of the Philippines not only concerned itself with GHG emissions from corporations operating abroad, but it has also underscored the importance of considering the role that a host of actors, including financiers and insurance companies, play in supporting environmentally harmful projects.⁶⁸

As mentioned earlier, the judicial decree in Milieudefensie was extraordinarily sweeping in that it applied not only to RDS’s domestic operations, but those it was engaged in outside the Netherlands as well. This approach challenges the unstated assumption that RDS’s domestic GHG emissions are somehow different than those it produces outside the Netherlands. But it also challenges the assumption that the Dutch government can only regulate RDS’s domestic operations.⁶⁹

Finally, in Duarte Agostinho and Others v Portugal and Others, which is currently before the ECtHR, the children bringing the case against their own state (Portugal) as well as thirty-two states parties to the European Convention argue that there are four aspects of GHG emissions and each needs to be considered: 1) domestic production; 2) GHG emissions from exports as well as 3) imports, and finally, 4) GHG emissions due to overseas financial investments. Cases like these can serve as a starting point for future litigation emphasising the need for governments and national courts to consider all emissions that may result from an action, even if those emissions are not produced within the state’s borders.

8.4 Replicability

The best emerging practices are certainly replicable. For example, the ECtHR (as well as other regional adjudicatory bodies) could easily recognise the unique nature of climate change and interpret the term ‘jurisdiction’ in Article 1 of the European Convention as applying extraterritorially, thereby allowing individuals in one state to pursue an action against one of the other state parties. Yet, even if the Court were to adopt such a reading in Agostinho, it is essential to note that the case was only brought against other state parties to the Convention. What is equally important is understanding that if children in Portugal are within the ‘jurisdiction’ of the other parties to the European Convention due to the GHG emissions from these states, children living in other parts of the globe are likely to be as well. The same is true of the Inter-American Court. While its Advisory Opinion is certainly a landmark ruling, there is no reason why extraterritorial jurisdiction should only be limited to the state parties to the American Convention.

It is already clear that a case like Urgenda is replicable, as similar judgments have now been issued by courts in other countries. While such rulings serve as important precedents, it is also essential to understand the inherent limitation of ‘domestic’ cases, where citizens of a state are seeking a judicial order limiting GHG emissions by that one country. Although the inclusion of foreign nationals in Neubauer is encouraging, what is unclear is how willing other domestic courts will be in entertaining claims brought by foreign nationals. The key is in recognising that the GHG emissions produced in one state can (and will) have a decidedly negative effect on the enjoyment of human rights in other states.

A case like Milieudefensie is also replicable. There is nothing that would prevent a French court from hearing a case against Total, a French-based multinational corporation, or a Norwegian court from hearing a case brought against Statoil, and so on. Yet, there is also no reason why domestic courts should only take up cases against domestic corporations. That is, there is no reason why a Dutch court should not also take up a case against ‘foreign’ corporations such as Total and Exxon as well. These multinational corporations not only produce GHG emissions that are harming Dutch citizens, but both corporations do extensive business in the Netherlands, thus providing a direct jurisdictional link.

One last scenario involves an offshoot of the Trail Smelter situation mentioned earlier. However, in this scenario Canada is not bringing a case against the US for the harmful GHG emissions produced in the US (although it could), nor are Canadian citizens bringing a case against the US. Rather, Canadian citizens could bring a case against their own government due to its failure to take action against the US as a way of preventing GHG emissions from entering Canadian airspace.⁷⁰

It should be clear that not only are many of the emerging best practices replicable, but the more important point is that extraterritorial climate change litigation has only started to scratch the surface. The key to all this is to act both efficiently, expeditiously, and fairly. This will only be achieved if as many voices can be heard as possible – while all those responsible for the earth’s rapid warming are held to account.

8.5 Conclusion

One of the more noteworthy aspects of the surge in climate change cases over just the past few years is that judges the world over have shown a great willingness to fill the vacuum left by the inadequate policies and practices of domestic and international political actors. On the other hand, as shown in this chapter, courts have struggled with the various extraterritorial elements that raise questions of culpability and responsibility. Given the long history of territorial grounding of law, perhaps climate change litigation will proceed down the same path. It is clear, however, that not only is this an inefficient way of addressing what is inherently a global problem, but one of the biggest shortcomings of such an approach is the great likelihood of creating enormous gaps in protection.

As we have seen here, some courts have recognised the extraterritorial dimension of climate change and issued rulings that reflect it. There is no question that the IACtHR’s 2017 Advisory Opinion is a landmark ruling. Much like the call of the various UN treaty bodies, the Court has given an extraterritorial reading to the term ‘jurisdiction’ in Article 1 of the American Convention. The legal force of the opinion remains limited, however, to the state parties to the Convention, which does not include the US, the second-largest emitter in the world. Likewise, even if the ECtHR rules in favour of the Portuguese children in Agostinho, this ruling would only allow a citizen of one European state to proceed with a claim against one of the other states parties to the European Convention. These children could still not bring an action against China or the US, the two largest producers of GHG. The larger lesson, perhaps, is that even regional human rights institutions can be hampered by territorial limitations.

In recognition of this, what would make an enormous difference would be an Advisory Opinion by the International Court of Justice detailing the responsibilities and obligations of all states – and not simply those of a fairly limited number of states.⁷¹ Yet, there are also things that states could do themselves – immediately. The most obvious, of course, is for states to meet their nationally determined contributions under the Paris Agreement. Some governments might do this on their own, but many more will need some form of judicial guidance. Notwithstanding historic rulings such as Urgenda, to paraphrase the district court ruling in Juliana,⁷² judges have tended to be much too conservative in climate change cases and the earth has suffered for this. Given the amorphous nature of climate change itself – but also what is at stake – courts should provide a liberal interpretation of both procedural (i.e. standing, exhaustion of domestic remedies) as well as substantive (i.e. causation) requirements. Above all else, it is imperative to acknowledge that climate change is an extraterritorial problem affecting all states and all people in all states. Attempting to deal with this by a ‘territorial’ interpretation of the law will simply not work.

9 Duty of Care

Christina Voigt and Joe Udell *

9.1 Introduction

One central aspect of climate litigation in recent years has been the recognition by courts that States – and now corporations – have a duty of care to address global warming. This development has occurred in both civil and common law jurisdictions, as judges have notably ordered governments to adopt more comprehensive climate policies with greater boldness and regularity based on this norm. This chapter will examine important trends in climate litigation with respect to the duty of care, identify emerging best practices from a range of cases, and analyse the potential for these emerging best practices to be replicated in other jurisdictions.

9.2 Duty of Care in Climate Litigation

In a number of recent cases, climate litigants have successfully grounded their claims in a variety of tort law, constitutional rights, and statutory provisions.¹ This has included the tort of hazardous negligence under the Dutch Civil Code in Urgenda Foundation v The State of The Netherlands,² negligent conduct as applied to public authorities under the Belgian Civil Code in VZW Klimaatzaak v Kingdom of Belgium and Others,³ and ecological damage under the French Civil Code in Notre Affaire à Tous and Others v France.⁴ Courts have also found duty of care violations under the rights to life and to private and family life of Articles 2 and 8 of the European Convention on Human Rights (ECHR) in Urgenda,⁵ as well as various constitutional rights in Neubauer and Others v Germany,⁶ Future Generations v Ministry of the Environment and Others (Demanda Generaciones Futuras v Minambiente),⁷ GroundWork Trust and Vukani Environmental Justice Alliance Movement in Action v Minister of Environmental Affairs and Others,⁸ PSB et al v Brazil,⁹ Klimatická žaloba ČR v Czech Republic,¹⁰ In re Greenpeace Southeast Asia and Others,¹¹ and Mathur and others v Her Majesty the Queen in Right of Ontario.¹² This section will examine how courts in various jurisdictions have interpreted the duty of care owed by a State or corporation, their focus on minimum reasonableness standards, and their response to common defences.

9.2.1 Interpreting the Standard of Care

When a State’s duty of care to mitigate climate change is an unwritten and/or open-standard norm, courts have relied on a range of sources to determine the contours of that standard, including international law such as the Paris Agreement, the best available science from the Intergovernmental Panel on Climate Change (IPCC), and international soft law, such as guidance from the United Nations (UN) and the Organisation for Economic Co-operation and Development (OECD).

9.2.1.1 International Climate Change Law

Courts have consistently referred to the Paris Agreement when considering a State’s duty of care, including several landmark decisions described later such as Urgenda and Neubauer. Close to 200 nations came to a consensus on the historically ambitious treaty in December 2015, which aims to strengthen the global response to the threat of climate change by (1) holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels; (2) increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas (GHG) emissions development, in a manner that does not threaten food production; and (3) making finance flows consistent with a pathway towards low GHG emissions and climate-resilient development.¹³ The instrument has been called ‘the most important international agreement in history’¹⁴ and a ‘monumental triumph’¹⁵ that ‘sets the stage for progress in ending poverty, strengthening peace, and ensuring a life of dignity and opportunity for all’.¹⁶

The treaty espouses an equitable approach to climate change, with each Party communicating every five years nationally determined contributions (NDCs) that are considered the ‘heart of the Paris Agreement’¹⁷ and its long-term temperature goal. The language of Article 4(3) outlines a duty of care that requires each Party’s NDC to ‘represent a progression beyond the Party’s then current [NDC] and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances’.¹⁸ As Article 4(3) requires each NDC to reflect a Party’s ‘highest possible ambition’¹⁹ and reflect ‘its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances’,²⁰ the relative content demanded of NDCs creates a due diligence standard of conduct that differs for each Paris Agreement party,²¹ while the treaty’s largely procedural reporting requirements establish obligations of result.

In addition to the Paris Agreement, national courts have referred to other international law instruments to determine a State’s appropriate climate duties. For example, in Thomson v Minister for Climate Change Issues, the High Court of New Zealand noted that, as a matter of statutory interpretation, the power to set GHG emissions reduction targets under s 224(2) of the country’s Climate Change Reduction Act 2002 ‘must be interpreted consistently with New Zealand’s international obligations’²² established by the UN Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, and the Paris Agreement.

In Urgenda, the Hague District Court held that the plaintiff environmental organisation could not directly rely on the no-harm principle, the UNFCCC, or the Kyoto Protocol in its claim.²³ Nevertheless, the court acknowledged that international law obligations have a ‘“reflex effect” in national law’.²⁴ As such, courts in the Netherlands will consider these obligations ‘when applying and interpreting national-law open standards and concepts’,²⁵ such as social proprietary, reasonableness and propriety, the general interest, or certain legal principles. On appeal, the Dutch Supreme Court similarly applied the ‘common ground’ method articulated by the European Court of Human Rights in Demir and Baykara v Turkey to ascertain the State’s positive obligations under Articles 2 and 8 of the ECHR.²⁶ The Dutch Supreme Court held that ‘an interpretation of the ECHR must also take into account the relevant rules of international law referred to in Article 31(3)(c) of the Vienna Convention on the Law of Treaties’.²⁷ Under the common ground method, the Court also considered scientific insights and soft law.²⁸

The Hague District Court, moreover, has indirectly relied on international law within the context of a corporation’s duty of care to mitigate climate change. In the landmark Milieudefensie v Royal Dutch Shell (RDS) case,²⁹ which marked the first time that a climate mitigation duty was imposed on a corporate actor, the court considered in the context of the duty of care ‘what is needed to prevent dangerous climate change’ under the Paris Agreement.³⁰ It explained that although certain provisions of the Paris Agreement are non-binding on the private actor (in this case RDS), they nevertheless ‘represent a universally endorsed and accepted standard that protects the common interest of preventing dangerous climate change’.³¹ The court followed this reasoning in its interpretation of the ‘unwritten’ duty of care in this case, as Book 6, Section 162 of the Dutch Civil Code prohibits acts or omissions that conflict with ‘proper social conduct’.³² Accordingly, the court ordered RDS to reduce the Scope 1, 2, and 3 emissions³³ of the Shell group by net 45 per cent by 2030 relative to 2019 levels.³⁴

France’s Conseil d’État (Council of State), the highest administrative court in the country, has also indirectly relied on the Paris Agreement as well as the UNFCCC. In Commune de Grande-Synthe v France,³⁵ the Grande-Synthe municipality, a low-lying coastal area that is particularly susceptible to global warming, sought a court order in January 2019 that would force the government to implement climate measures and prohibit actions likely to increase GHG emissions.³⁶ The court held in November 2020 that it could not issue a ruling on the merits of the dispute. France was instead given three months to prove that it could meet its emission reduction target of 40 per cent by 2030 compared to 1990 levels without additional measures.³⁷ Although the plaintiffs could not directly invoke the Paris Agreement or the UNFCCC, the court acknowledged that ‘they must nevertheless be taken into consideration in the interpretation of provisions of national law’.³⁸

Beyond treaty law, courts have drawn on a broad range of international law norms in climate cases to give meaning and content to the duty of care, including general principles of international environmental law and international human rights law. In PSB, Brazil’s Federal Supreme Court drew a direct connection between these norms in holding that the Paris Agreement is a human rights treaty because ‘[t]reaties on environmental law are a species of the genus human rights treaties’.³⁹ As such, the climate treaty enjoys supranational status under the constitution and ‘there is no legally valid option of simply omitting to combat climate change’⁴⁰ in the country. Similarly, in Urgenda, the Dutch Supreme Court referred to the UNFCCC, the ECHR, Conference of the Parties (COP) decisions, the precautionary principle, the principle of due diligence, the no-harm principle, the law of state responsibility, and the notion of intergenerational equity.⁴¹

9.2.1.2 IPCC and Other Forms of best Available Science

Courts have relied on the reports from the IPCC when examining the scope or standard of the duty of care of a State or a corporation. These scientific findings provide best scientific assessments of the current and projected impacts of climate change, as well as the emissions reductions that are required to prevent climate change. For example, Thomson shows how the work of the IPCC has provided helpful guidelines for interpreting national commitments:

The IPCC reports provide the most up to date scientific consensus on climate change. New Zealand accepts this. To give effect to the Act and what New Zealand has accepted, recognised and committed to under the international instruments, and in light of the threat that climate change presents to humankind and the environment, I consider the publishing of a new IPCC report requires the Minister to consider whether a target set under s 224 should be reviewed. That is, it is a mandatory relevant consideration in whether an existing target should be reviewed under s 224(2).⁴²

Other climate cases that cite these reports include Urgenda,⁴³ Neubauer,⁴⁴ Klimaatzaak,⁴⁵ In re Greenpeace Southeast Asia,⁴⁶ Klimatická žaloba ČR,⁴⁷ Mathur,⁴⁸ Notre Affaire à Tous,⁴⁹ Milieudefensie,⁵⁰ and Future Generations.⁵¹

Courts have also drawn on reports from national science institutions. In particular, the German Constitutional Court referred to evidence from the German Advisory Council on the Environment throughout its decision in Neubauer. In Notre Affaire à Tous, the Administrative Court of Paris drew from the findings of the High Council for the Climate and the Centre Interprofessionnel Technique d’études de la Pollution, an independent national scientific body and a State operator, respectively, to determine that France ‘substantially exceeded its first carbon budget’.⁵² Finally, the Irish Supreme Court in Friends of the Irish Environment v Ireland expressly gave ‘significant weight’⁵³ to the views of the domestic Climate Change Advisory Council before quashing the government’s National Mitigation Plan.

The growing sophistication of climate change science will likely present courts with novel opportunities to interpret State duty of care responsibilities and add to existing jurisprudence in the future. As plaintiffs articulate the impact that individual States and private actors have on global warming with greater particularity, it will be easier to determine if a defendant’s action or inaction violated an affirmative climate duty. Courts will continue to play an essential role in determining the contours of those duties in accordance with new scientific advancements.

9.2.2 Minimum Standard

Courts have tended to focus on whether States have met the minimum standard of care in light of the risk of climate harm when assessing the scope of States’ duty of care. In Urgenda, the Dutch Supreme Court issued a binding order requiring the Netherlands to set the minimum reduction level at 25 per cent by 2020 against 1990 levels, which could ‘be regarded as an absolute minimum’.⁵⁴ In VZW Klimaatzaak, the Court of Appeal of Brussels ordered Belgium and two of its regional governments via an injunction to reduce their emissions by 55 per cent by 2030 against 1990 levels.⁵⁵ In Neubauer, the German Constitutional Court noted that a violation of a duty of protection occurs ‘if no precautionary measures whatsoever have been taken, or if the adopted provisions and measures prove to be manifestly unsuitable or completely inadequate for achieving the required protection goal, or if the provisions and measures fall significantly short of the protection goal’.⁵⁶ This reflects the reasoning in the German Family Farmers case, in which the Administrative Court of Berlin considered whether the government’s emissions reduction target violated ‘the constitutionally required minimum level of climate protection, even if it is a global problem’.⁵⁷

9.2.3 Soft Law

Soft law has increasingly helped courts conduct its duty of care analyses for State and non-State actors. In Urgenda, for example, the Supreme Court referred to numerous non-binding COP decisions as evidence of ‘a high degree of consensus in the international community’⁵⁸ on the need for developed countries to reduce their GHG emissions by 25–40 per cent by 2020 compared to 1990 levels.⁵⁹ In Milieudefensie, soft law instruments, like the UN Guiding Principles on Business and Human Rights (UNGP), OECD Guidelines for Multinational Enterprises, and the UN Global Compact, were particularly instructive. Even though RDS endorsed the UNGP on its website, the court noted that such explicit support is actually ‘irrelevant’ given the ‘authoritative’ and ‘universally endorsed content’ of the instrument, as well as the European Commission’s expectation that all European businesses adhere to the document’s human rights guidance.⁶⁰ As a result, the court upheld the UNGP’s suitability ‘as a guideline in the interpretation of the unwritten standard of care’⁶¹ under Dutch law. Such decisions reinforce the notion that, despite its non-binding nature, soft law has an essential role to play in establishing climate obligations.

9.2.4 Defences

One prominent argument that climate respondents make is that ‘the GHG emissions from a particular activity are but a “drop in the ocean” in global terms and hence cannot be said to cause climate change harm’.⁶² This defence stems in part from the ‘single-entity focus of traditional regulatory and governance approaches’⁶³ and ‘denies the complex nature of the climate change problem as one that arises because of the cumulative effect over time and space of numerous emissions of GHGs from a range of sources’.⁶⁴

Courts have nevertheless upheld a State’s duty to mitigate climate change despite its global nature and the fact that no one action can solve the issue. In Massachusetts v Environmental Protection Agency (EPA), one of the earliest climate cases, the EPA argued that its decision not to regulate GHG emissions was because they contribute ‘so insignificantly to petitioners’ injuries that the Agency cannot be hauled into a federal court to answer for them.⁶⁵ The Supreme Court of the United States, however, held that the EPA has the statutory responsibility under the Clean Air Act to regulate emissions as an ‘air pollutant’, reasoning that agencies ‘do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed’.⁶⁶

Courts have continued to disregard the ‘drop in the ocean’ defence in recent climate cases. Thomson, for example, observes that the subject of climate change is not a ‘“no-go area” for courts around the world, even if the ‘problem is a global one and one country’s efforts alone cannot prevent harm to that country’s people and their environment’.⁶⁷ In Urgenda, the Dutch Supreme Court held that the State is ‘obliged to do “its part” in order to prevent dangerous climate change, even if it is a global problem’.⁶⁸ The Brussels Court of First Instance expressly agreed with this holding in VZW Klimaatzaak, pointing out that the ‘global dimension of the problem of dangerous global warming does not exempt the Belgian public authorities from their pre-described obligation under Articles 2 and 8 of the ECHR’.⁶⁹ Finally, Neubauer emphasises the importance of trust and cooperation between nations in the fight against climate change:

[T]he particular reliance on the international community gives rise to a constitutional necessity to actually implement one’s own climate action measures at the national level – in international agreement wherever possible. It is precisely because the state is dependent on international cooperation in order to effectively carry out its obligation to take climate action under Article 20A GG that it must avoid creating incentives for other states to undermine this cooperation. Its own activities should serve to strengthen international confidence in the fact that climate action – particularly the pursuit of treaty-based climate targets – can be successful while safeguarding decent living conditions, including in terms of fundamental freedoms. In practice, resolving the global climate problem is thus largely dependent on the existence of mutual trust that others will also strive to achieve the targets.⁷⁰

Defendants in climate litigation have also argued that finding a duty of care could open the floodgates of litigation. As a result, some courts have hesitated to recognise novel duties of care in the climate context. For instance, in Michael John Smith v Fonterra Co-Operative Group Limited, a tort-based lawsuit in New Zealand, the country’s High Court acknowledged that common law ‘is capable of creating new principles and causes of action’,⁷¹ but establishing these duties involves clearing ‘significant hurdles’⁷² and matters of public policy, such as the potential for creating ‘issues of indeterminate liability’:⁷³

[I]t is unlikely that the class could be limited to the owners of coastal property. The claimed duty would be owed to anybody who can claim damage as a result of the widespread effects of climate change. In a very real sense, everyone is a polluter, and therefore a tortfeasor, and everyone is a victim and therefore a potential claimant. If a duty of the kind alleged were recognised, every New Zealander would be liable to suit from every other New Zealander.⁷⁴

The Court of Appeal agreed with this rationale, noting that the recognition of a novel climate duty ‘would create a limitless class of potential plaintiffs as well as a limitless class of potential defendants’.⁷⁵ Defendants, as a result, ‘would be subjected to indeterminate liability and embroiled in highly problematic and complex contribution arguments on an unprecedented scale potentially involving overseas emitters as well as New Zealand emitters’.⁷⁶ However, the Supreme Court of New Zealand has since overturned the Court of Appeal’s decision and will allow all three claims to proceed to trial.⁷⁷ In so doing, the Supreme Court countered the notion that novel climate duties would result in a deluge of lawsuits. Rather, a defendant’s actions or omissions ‘must amount to a substantial and unreasonable interference with public rights’.⁷⁸ This limitation ‘creates a significant threshold for plaintiffs’ and ‘[o]nly some emitters will cross it’.⁷⁹

In Milieudefensie, RDS raised a similar floodgates defence, asserting that ‘[e]very person creates significant greenhouse gas emissions’⁸⁰ in their daily lives, including the ‘countless’⁸¹ people who drive cars on a daily basis and the millions of Dutch people who fly each year.⁸² As such, if the court were to impose a duty of care on RDS, that ‘would have the undesirable result of opening the door to claims, “from all, against all”’.⁸³ However, as the next section will discuss, this argument was dismissed because there was ‘no room for weighted interests’.⁸⁴

9.3 Emerging Best Practices

As climate jurisprudence continues to evolve with respect to duty of care obligations, a range of emerging best practices have developed in courts around the world. This section examines several representative best practices with an eye towards informing judges of complex issues that commonly arise in climate litigation.

9.3.1 Hybrid Duty of Care Arguments

The hybrid nature of climate litigation is perhaps best represented by the landmark Urgenda case. As has been pointed out, human rights arguments were ‘technically peripheral to grounds of the case’,⁸⁵ which centred around the Dutch Civil Code, but ‘they ended up being decisive to the result as they were utilised by the court to fill in the content of due diligence standards owed under the duty of care considered by the court’.⁸⁶ Accordingly, Urgenda is a ‘progressive example’⁸⁷ of how courts can ‘actively use the substantive and procedural provisions of international human rights law, together with soft law provisions such as targets agreed under the Paris framework, to interpret domestic law, and to bridge the gap between the international law obligations of the state concerned and its domestic law’.⁸⁸

In Urgenda, the Dutch Supreme Court affirmed a District Court order that the Netherlands has a duty of care to reduce its GHG emissions by at least 25 per cent by 2020 compared to 1990 levels.⁸⁹ This responsibility stems from the unwritten rule pursuant to the aforementioned Book 6, Section 162 of the Dutch Civil Code, which prohibits acts or omissions that conflict with ‘proper social conduct’,⁹⁰ as well as Articles 2 and 8 of the ECHR, which protect the right to life and the right to respect for private and family life, respectively. When analysing potential violations of this tort provision before Urgenda, judges in the Netherlands considered ‘general social notions of what may be expected from a legal person acting reasonably’.⁹¹ In this case, the court held that the Netherlands has a duty under Articles 2 and 8 of the ECHR to ‘take appropriate steps’⁹² to address the ‘real and immediate risk’⁹³ of climate change.

Urgenda represents an emerging best practice in part because of its forward-looking assessment of climate change impacts and its willingness to frame the State’s duties around the uncertainty of that crisis. For example, the court emphasised that the Netherlands has a responsibility to take climate action even if the impacts of climate change will not materialise for decades or impact specific persons.⁹⁴ Similarly, the fact that there is uncertainty surrounding the potential materialisation of climate change impacts in the future does not relieve the State of its duty of care in the present.⁹⁵ Rather, the ‘sufficiently genuine possibility’⁹⁶ of this risk materialising requires ‘that suitable measures’⁹⁷ be taken. Although the Netherlands still has ‘discretion in choosing the steps to be taken’,⁹⁸ they need to be ‘reasonable and suitable’⁹⁹ given the seriousness of climate change.

9.3.2 Duty of Care Derived from Constitutional Rights

The German Federal Constitutional Court’s analysis in Neubauer represents emerging best practice in relation to how far-reaching climate obligations can be derived from constitutional provisions. The case was brought by a large group of youth plaintiffs from Germany, Nepal, and Bangladesh, who argued that Germany’s Federal Climate Protection Act (Klimaschutzgesetz – KSG) violated several of their fundamental rights contained in the Basic Law (constitution).¹⁰⁰ The KSG sets a climate neutrality (‘net-zero emission’) target for 2050. Although KSG specified annual GHG emissions allowed up to 2030, emissions reductions for the post-2030 period needed for reaching climate neutrality in 2050 were undetermined. The court held that this ambiguity and its potential for immense reduction burdens after 2030 unconstitutionally jeopardised the future freedoms of the young plaintiffs.¹⁰¹

Under Articles 2(2) and 14(1) of the Basic Law, Germany must safeguard freedom rights and the fundamental right to life and physical integrity,¹⁰² as well as property, respectively.¹⁰³ The court notably determined that both these duties encompass climate obligations. For example, Article 2(2) places an obligation on Germany to protect the life and health of current and future generations from the ‘considerable risks’¹⁰⁴ brought on by ‘increasingly severe climate change’,¹⁰⁵ such as heat waves, flooding, and hurricanes. The State, accordingly, has a duty to engage in international treaty negotiations, establish national mitigation measures, and implement adaptation strategies to protect current and future generations from the effects of climate change.¹⁰⁶ Similarly, unmitigated climate change will cause houses and entire settlements in Germany to become uninhabitable due to flooding and rising sea levels.¹⁰⁷ The court reasoned that because the loss of property might ‘be accompanied by a loss of stable community ties within the local environment’,¹⁰⁸ these ties must be taken into consideration under Article 14(1) GG, which grants ‘a certain degree of protection to social environments that have matured to the point of being “communities”’.¹⁰⁹ The court found a violation of the claimants’ freedom rights because of the discriminatory allocation of climate measures after 2030.¹¹⁰ Those measures infringed upon the freedom rights of the young claimants by locking them into a carbon-intensive future that would inevitably require burdensome mitigation measures.

Another example of this dynamic can be found in In re Court on its own motion v State of Himachal Pradesh, in which India’s National Green Tribunal (NGT) mandated that all visitors to Rohtang Pass – a popular tourist destination in the Himalayas – must pay a tax that addresses the presence of black carbon in the area and the ‘need to tackle global warming’.¹¹¹ The holding in this case stems from several constitutional Articles that do not mention global warming, but which the NGT interpreted ‘in a way that compels governments to support and encourage more effective climate change adaption efforts’.¹¹² For instance, Article 21 of the country’s constitution protects the right to life and personal liberty, which the Supreme Court of India has liberally interpreted to encompass the right to a healthy environment.¹¹³ Article 48A, similarly, places an obligation on the State ‘to protect and improve the environment and to safeguard the forest and wildlife in the country’.¹¹⁴

State of Himachal Pradesh is thus rooted in rights that the court interpreted as ‘being compromised by a combination of changing environmental circumstances and government inaction’.¹¹⁵ Accordingly, Articles 21 and 48A provide the primary legal basis for Himachal Pradesh’s duty to ‘ensure due protection to the forests and environment of the country’.¹¹⁶ To fulfil this duty, the tribunal held that the government must implement policy that weighs ‘the need for development of industry, irrigation resources, power projects’¹¹⁷ as well as the sanctity of life, public health, and ecology.¹¹⁸ These considerations form a ‘“reasonable person’s” test’¹¹⁹ involving both factors, with environmental protection ultimately having priority over unemployment and loss of revenue.¹²⁰ Himachal Pradesh’s failure to properly restrict development in Rohtang Pass thereby violated its duty of care and prompted the tribunal to issue the visitor tax.

In the United States, the Due Process Clause of the country’s constitution does not normally impose an obligation on the government to act, even if such action is necessary to prevent the loss of life, liberty, or property.¹²¹ However, an exception applies when government conduct places a person in peril in deliberate indifference to their safety.¹²² This ‘danger creation’ allows plaintiffs to bring forward a substantive due process claim, which the twenty-one youth plaintiffs in Juliana v United States invoked against the national government in Oregon’s district court.

The Juliana plaintiffs contended that the government ‘played a unique and central role’¹²³ in the creation of global warming and ‘contributed to the crisis with full knowledge of the significant and unreasonable risks posed by climate change’.¹²⁴ As a result of these actions, the Due Process Clause allegedly ‘imposes a special duty on defendants to use their statutory and regulatory authority to reduce greenhouse gas emissions’.¹²⁵ At the motion to dismiss stage, the court accepted the allegations as true and allowed the substantive due process challenge to proceed.¹²⁶

The district court again considered the danger creation exception claim on motion for summary judgment,¹²⁷ with the plaintiffs presenting extensive evidence dating back to the 1960s that demonstrated a question of material fact regarding the government’s ‘knowledge, actions, and alleged deliberate indifference’¹²⁸ to climate change. The court acknowledged the ‘complicated and novel questions about standing, historical context, and constitutional rights’¹²⁹ and denied the defendants’ motion for summary judgment. This provided an opportunity for the plaintiffs to cultivate ‘the most exhaustive record possible during a trial’¹³⁰ with an understanding that there was still a ‘very high bar to ultimately succeed’.¹³¹ The Ninth Circuit ultimately dismissed the plaintiffs’ case for lack of standing without examining the danger creation argument. However, the Juliana plaintiffs’ efforts to distinguish an affirmative State duty presents an intriguing approach to climate mitigation responsibility in the United States, and the Oregon district court’s willingness to allow the plaintiffs to develop a comprehensive record can be regarded as an emerging best practice for substantive due process claims in climate litigation.

9.3.3 Future Emissions Targets and Future Generations

In recent years, climate change activists, environmental organisations, and the general public have spearheaded strategic litigation aimed at the sufficiency of national climate policies.¹³² This trend will likely continue with plaintiffs relying on courts to scrutinise the NDCs that countries must produce every five years under the Paris Agreement. As such, the Paris Administrative Court’s recognition in Notre Affaire à Tous that a State cannot escape its immediate duty of care obligations by potentially meeting future emissions targets is reflective of emerging best practice.

The four plaintiff environmental organisations in Notre Affaire à Tous argued that France has a general duty to fight climate change based on, inter alia, the UNFCCC, the Paris Agreement, Articles 2 and 8 of the ECHR, and its domestic law.¹³³ They posited that France violated this duty by not adopting ‘sufficient measures to ensure the application of the legislative and regulatory framework it has set itself to combat climate change’¹³⁴ and failing to set ‘targets for the reduction of greenhouse gas emissions which do not allow the rise in the global average temperature of the atmosphere to be limited to 1.5°C’.¹³⁵ Over 2.3 million citizens signed a petition submitted with the court filings, which represents the greatest level of public support for a climate case at the time of this writing.¹³⁶

The court highlighted how France’s international and domestic commitments recognise ‘the existence of an “emergency” to combat the ongoing climate change’¹³⁷ as well as ‘its capacity to act effectively on this phenomenon in order to limit its causes and mitigate its harmful consequences’.¹³⁸ The country’s corresponding actions include its treaty-based climate obligations to the international community and a domestic ‘public policy to reduce greenhouse gas emissions … by specific and successive deadlines’.¹³⁹ France thereby accepted a duty of care to take reasonable political steps and address climate change. However, when the country substantially exceeded its first carbon budget, which took place during 2015 to 2018, it ‘failed to carry out the actions that it had itself recognized as likely to reduce greenhouse gas emissions’.¹⁴⁰ Notably, the court held that France’s potential to reach its national targets and reduce GHG emissions by 40 per cent in 2030 compared with 1990 levels as well as achieve carbon neutrality by 2050 ‘does not exonerate it from its liability’.¹⁴¹ This is because France’s climate mitigation missteps have resulted in additional emissions that will aggravate existing ecological damage over their lifetime in the atmosphere.¹⁴²

In addition to Notre Affaire à Tous, Neubauer can also help judges examine a State’s comprehensive climate mitigation plans and evaluate periodic implementation efforts with an eye towards intergenerational equity. In Neubauer, the court found that Article 20(a) of the Basic Law, which requires Germany to protect the natural foundations of life for future generations, also establishes an affirmative obligation to take climate action with the aim of achieving climate neutrality.¹⁴³ Due to the global nature of climate change, Article 20(a) ‘thus contains a duty that necessarily looks beyond the domestic legal system under the sole responsibility of the individual state, and must be understood as also pointing towards the level of international activity’.¹⁴⁴ This obligation to act goes beyond the pursuit of climate treaties and ‘extends to the implementation of agreed solutions’.¹⁴⁵ The court interpreted Article 20(a) in light of the goals of the Paris Agreement, and stated that 20(a) required net-zero emissions by 2050. This requirement was implemented into the KSG and thereby legally binding, but not with the needed specificity of mitigation measures for 2031–2050.

As Article 20(a) is uniquely concerned with ‘how environmental burdens are spread out between different generations’,¹⁴⁶ Germany’s duty of care involves ‘treat[ing] the natural foundations of life with such care … that future generations who wish to carry on preserving these foundations are not forced to engage in radical abstinence’.¹⁴⁷ Translated to the climate context, it is imperative that the State ‘prevent[s] an overly short-sighted and thus one-sided distribution of freedom and reduction burdens to the detriment of the future’.¹⁴⁸ The court held that the emissions allowed before 2030 ‘are capable of giving rise to substantial burdens to reduce emissions’¹⁴⁹ beyond that time period, which creates a significant risk of impairment to fundamental rights.¹⁵⁰ Germany thereby violated its duty to ensure that the reduction of GHG emissions is ‘spread out over time in a forward-looking’¹⁵¹ and proportional manner that respects the rights of those that are young today in the future in an ‘intertemporal’ extension of their rights. As young plaintiffs will likely continue to rely on courts to hold States accountable for their climate actions on behalf of future generations, Neubauer provides insight into how courts can evaluate the long-term ambition and impacts of national climate policies.

9.3.4 Duty of Care for Corporations

The Hague District Court’s historic ruling in Milieudefensie against RDS represents an emerging best practice for how courts should apply duty of care obligations to private actors. As mentioned earlier, by holding that RDS must reduce the Scope 1, 2, and 3 emissions of the global Shell group by net 45 per cent by 2030 relative to 2019 levels, the case marked the first time that a court ordered a corporation to adopt climate policies that are aligned with the Paris Agreement.¹⁵² As such, it provides a potential template for judges who must consider the legal responsibility that corporate defendants have for their GHG emissions.

The main legal issue in Milieudefensie was whether RDS owed a duty of care to mitigate climate change based on the same unwritten notion in the Dutch Civil Code from Urgenda. The court ultimately sided with the plaintiffs and held that RDS has a duty to take climate action because Book 6, Section 162 of the Dutch Civil Code implies an obligation not to act in conflict with what is generally regarded as proper social conduct according to unwritten law.¹⁵³ Interpreting the nuances of this duty called ‘for an assessment of all circumstances of the case in question’,¹⁵⁴ including international law, soft law, the company’s own policies, and the best available science.

Although the plaintiffs could not directly invoke the Paris Agreement and human rights established in the relationship between states and citizens – in this case, Articles 2 and 8 of the ECHR and Articles 6 and 17 of the International Covenant on Civil and Political Rights – the court nevertheless acknowledged that those rights ‘may play a role in the relationship’¹⁵⁵ between the plaintiffs and RDS due to the fundamental interest of human rights and the value for society they embody as a whole. It thus factored in human rights and the values they embody in its interpretation of the unwritten standard of care: ‘From the Urgenda ruling it can be deduced that Articles 2 and 8 ECHR offer protection against the consequences of dangerous climate change due to CO₂ emissions induced global warming’.¹⁵⁶ The court concluded that ‘RDS’ argument that the human rights invoked by Milieudefensie et al. offer no protection against dangerous climate change therefore does not hold. The serious and irreversible consequences of dangerous climate change in the Netherlands and the Wadden region … pose a threat to the human rights of [the claimants]’.¹⁵⁷

The court also relied on the ‘universally endorsed’¹⁵⁸ – although non-binding – UNGP to distinguish the different responsibilities that States and businesses have in the protection of human rights. The obligation of States under international human rights law is binding and requires them to ‘prevent, investigate, punish and redress’ human rights abuses in their territory through ‘effective policies, legislation, regulations and adjudication’.¹⁵⁹ However, corporations must also ‘avoid infringing on the human rights of others’ and take proactive steps ‘to prevent, limit and, where necessary, address’ such abuses.¹⁶⁰ This duty exists independently of States’ abilities to meet their human rights obligations and ‘applies everywhere, regardless of the local legal context’.¹⁶¹ As part of its duty of care, RDS thus has a responsibility to respect human rights across its entire value chain,¹⁶² from the business relations of the Shell group, which it has a policy-setting influence over as the top holding company, to the emissions of its end-users.¹⁶³

To ascertain what is needed from RDS to reduce GHG emissions, the Paris Agreement provided crucial guidance. The treaty, according to the court, ‘is supported by widespread international consensus’¹⁶⁴ and ‘represent[s] the best available scientific findings in climate science’.¹⁶⁵ Those findings indicate that limiting global warming to 1.5°C will require reduction pathways aiming for net 45 per cent by 2030, relative to 2010 levels, and net 100 per cent by 2050.¹⁶⁶ Although the instrument does not bind private actors such as RDS,¹⁶⁷ there is ‘broad international consensus that each company must independently work towards achieving net zero emissions by 2050’¹⁶⁸ and, similar to the Urgenda decision, ‘RDS may be expected to do its part’.¹⁶⁹

In specifying RDS’s duty of care, the court set an obligation of result and a ‘significant best-efforts obligation’.¹⁷⁰ The company’s responsibility to lower the CO₂ emissions of the Shell group by net 45 per cent relative to 2019 levels is an obligation of result. RDS, however, has leeway to differentiate the respective reductions in Scope 1, 2, and 3 emissions, as long as it achieves the overall target reduction amount.¹⁷¹ This rationale is consistent with Urgenda’s willingness to grant the Netherlands discretion in the steps taken to meet its emissions target.¹⁷²

On the other hand, RDS’s best-efforts obligation concerns the business relations of the Shell group, including the Scope 3 emissions of its end-users. The court declared that RDS may need to take ‘necessary steps’ to prevent the serious risks from their CO₂ emissions, and to ‘use its influence to limit any lasting consequences as much as possible’.¹⁷³ It is unclear how RDS should go about exerting this pressure on its value chain, but a possible consequence could be that the company ‘forgo[es] new investments in the extraction of fossil fuels’ or ‘limit[s] its production of fossil resources’.¹⁷⁴ Future jurisprudence will thus be crucial to addressing this gap in climate litigation with respect to corporations.

9.3.5 Environmental Impact Assessments

As mentioned earlier, one of the difficulties of climate litigation is that the single-entity regulatory focus of governments often overlooks the complex, cumulative nature of climate change. However, international law maintains that projects with the potential for significant transboundary harm must go through the Environmental Impact Assessment (EIA) process. This procedural requirement is supported by International Law Commission scholarship¹⁷⁵ and International Court of Justice case law, particularly Pulp Mills on the River Uruguay (Argentina v Uruguay) (Pulp Mills), a 2010 dispute in which the court held that States should determine EIA requirements and ensure that the assessment is conducted with due diligence before a project’s commencement.¹⁷⁶

Save Lamu et al v National Environmental Management Authority and Amu Power Co Ltd provides insight into the role of an EIA in climate litigation and how these international norms can play out in domestic courts.¹⁷⁷ Kenya adheres to international law by requiring coal plant developers to secure an EIA before construction begins on a project. This obligation is cemented in its national constitution, the Environmental Management and Coordination Act, 1999, the Environmental (Impact Assessment and Audit) Regulations, and the Energy Act, 2019.¹⁷⁸ Public participation is an essential part of Kenya’s EIA process and, although an agency is not required ‘to accept the view given as dispositive’,¹⁷⁹ it does create ‘a duty for the government agency or Public Official involved to take into consideration, in good faith, all the views received’.¹⁸⁰ Likewise, it is not necessary for every person to support a project or for a proponent to ‘address every unreasonable demand and suggestion’,¹⁸¹ but ‘even the most feeble of voices [must] be heard’.¹⁸²

In Save Lamu, the National Environmental Tribunal revoked Amu Power Company’s EIA licence for a two-billion-dollar coal facility because the National Environmental Management Authority issued it without ‘proper and effective public participation’.¹⁸³ The tribunal held that the National Environmental Management Authority ‘owed a duty to properly supervise and ensure there had been compliance’¹⁸⁴ with EIA requirements, but the agency’s efforts were inadequate.¹⁸⁵ The fact that the public did not have information on the project’s potential climate impacts before providing testimony was regarded as particularly troubling.¹⁸⁶ Although Amu Power’s EIA was ultimately an ‘impressive piece of literal work’,¹⁸⁷ it was ‘devoid of public consultation content, in the manner prescribed by the law, thus rendering it ineffective and at best only of academic value’.¹⁸⁸

As States continue to rely on fossil fuels to meet their domestic power needs, Save Lamu underscores how an EIA can be a powerful procedural requirement.¹⁸⁹ In fact, it may be the only way for plaintiffs to successfully challenge the construction of projects with significant emissions in some jurisdictions. In Kenya, for example, ‘if the requisite conditions are met with respect to environmental matters including the due and proper preparation of an EIA study … coal fired power plants remain, for the time being, a lawful option’.¹⁹⁰ The Save Lamu tribunal’s willingness to uphold the normative value of those procedural conditions can thus be considered an emerging best practice.

Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others¹⁹¹ can also be seen as a companion case to Save Lamu with respect to EIA considerations. South Africa’s High Court in Pretoria determined that ‘climate change impacts of coal-fired power stations are relevant factors that must be considered before granting environmental authorisation’.¹⁹² The environmental authorisation in Earthlife was granted by the Chief Director of the Department of Environmental Affairs to the Thabametsi Power Company Limited for a proposed 1200-megawatt coal-fired plant station in Limpopo Province.¹⁹³ Under South Africa’s constitution, courts interpreting legislation ‘must prefer any reasonable interpretation’¹⁹⁴ consistent with international law ‘over any alternative interpretation that is inconsistent with international law’.¹⁹⁵ Thus, international agreements on climate change are relevant to the proper interpretation of the National Environmental Management Act (NEMA) that governs environmental authorisations in South Africa.¹⁹⁶

The Earthlife court noted that the absence of an express provision requiring a climate change impact assessment ‘does not entail that there is no legal duty to consider climate change’.¹⁹⁷ Rather, NEMA impliedly imposes a peremptory statutory duty on the Chief Director to ‘thoroughly investigate climate change impacts’¹⁹⁸ with national and international consequences.

Even if new coal-fired power stations are permitted by the Paris Agreement and South Africa’s NDC, a climate change impact assessment is ‘necessary and relevant’¹⁹⁹ to the EIA process. This is because the assessment ensures that the proposed development fits South Africa’s peak, plateau, and decline trajectory outlined in its NDC as well as ‘its commitment to build cleaner and more efficient’ coal plants.²⁰⁰ Ascertaining if a climate assessment has been made involves a narrow examination of conduct: ‘A formal expert report on climate change impacts will be the best evidentiary means of establishing that this relevant factor in its multifaceted dimensions was indeed considered, while the absence of one will be symptomatic of the fact that it was not’.²⁰¹ Since the Chief Director did not consider any expert climate report before granting Thabametsi an environmental authorisation, the court determined that he overlooked relevant considerations.²⁰²

Earthlife highlights the notion that a national environmental assessment statute can implicitly create climate mitigation duties through the EIA process. This duty affects the State agencies that oversee environmental authorisations as well as the companies carrying out EIAs for compliance purposes. Earthlife is therefore significant because it represents a progression from the Save Lamu decision and promotes a more robust standard of conduct incorporating treaty-based climate commitments and international law obligations. The case may be especially relevant to dualist systems, where judges must consider a State’s responsibilities to the global community and their relationship to domestic environmental legislation.

A recent example of the importance of comprehensively evaluating climate impacts in an EIA assessment can be found in Greenpeace Nordic and Nature & Youth v Energy Ministry.²⁰³ The Oslo District Court held that the Norwegian Energy Ministry’s approval of three oil and gas fields in the North Sea was invalid because the EIAs did not include combustion (Scope 3) emissions data from the oil and gas produced. This failure went against the idea that EIAs ‘must be objective and so comprehensive and complete’ that authorities are properly aware of potential environmental harms and the public can gain ‘real insight into the climate effects of the combustion emissions’.²⁰⁴ This rationale is reflective of emerging best practice as it underscores the crucial role Scope 3 emissions data plays in informing both administrative decisionmakers and the public.

9.3.6 Drop in the Ocean Defence

As described earlier, Massachusetts v EPA remains notable in part for the United States Supreme Court’s response to the drop in the ocean defence invoked by the EPA. The court disagreed with the agency’s assertion that ‘gas emissions from developing nations, particularly China and India, are likely to offset any marginal domestic decrease’²⁰⁵ from its regulation of vehicle emissions. The court reasoned that the possibility that other developing countries may increase GHG emissions in the future is irrelevant since a ‘reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere’.²⁰⁶ It is not only this forward-looking rationale that is reflective of emerging best practices; so, too, is the court’s willingness to assert its jurisdiction by declaring that, even if ‘regulating motor-vehicle emissions will not by itself reverse global warming’,²⁰⁷ it still has the ability to determine whether the EPA has the ‘duty to take steps to slow or reduce it’.²⁰⁸ Such boldness will likely be required of courts in the future as complex climate issues continue to arise with governments and regulatory agencies serving as defendants.

Over a decade and a half later, the line of reasoning in Massachusetts v EPA that countered the EPA’s drop in the ocean defence continues to play a crucial role in climate cases. This is noticeably apparent in the Urgenda decision, in which the Dutch Supreme Court points out that the failure of other States to take climate action is not an excuse for the Netherlands to neglect its duty of care obligations.²⁰⁹ Even if those countries continue to emit large amounts of pollutants, the Netherlands is still responsible for ‘its part’²¹⁰ in the climate crisis, as ‘no reduction [in GHG emissions] is negligible’.²¹¹ The Neubauer court similarly explained that Germany ‘may not evade its responsibility here by pointing to greenhouse gas emissions in other states’.²¹² Instead, ‘[i]t’s own activities should serve to strengthen international confidence’²¹³ as addressing climate change is ‘largely dependent on the existence of mutual trust that others will also strive to achieve the[ir] targets’.²¹⁴ In Klimatická žaloba ČR, the Czech court declared that ‘the individual responsibility of the States Parties to the Paris Agreement cannot be excluded by reference to the level of emission contributions of other States’²¹⁵ since this ‘approach would make effective legal protection impossible where the State in question is not a significant emitter of greenhouse gases on a global scale’.²¹⁶ Accordingly, the willingness of courts to uphold individual duty of care obligations – irrespective of the comparative emissions of others – is reflective of emerging best practices in what is ultimately a collective effort against climate change.

9.3.7 Floodgates Defence

The Hague District Court’s rejection of the floodgates defence in Milieudefensie reflects an emerging best practice that will become more important as duty of care jurisprudence evolves in climate litigation. The court rebutted RDS’s floodgates argument by asserting that the ‘policy, policy intentions and ambitions’²¹⁷ of RDS for the Shell group were ‘incompatible’²¹⁸ with its reduction obligation. This incompatibility thereby ‘implie[d] an imminent violation’²¹⁹ of RDS’s reduction obligation and, as such, it was not necessary for the court to consider if it was appropriate to impose a climate duty on a single private party or ‘whether or not this invites everyone in global society to lodge claims against each other’.²²⁰ In future cases, courts that choose to address the merits of the floodgates defence may opt to do so through a fact-specific inquiry.²²¹

9.4 Replicability

As climate litigation cases grow in complexity and across geographic regions, there is a good probability that a more developed jurisprudence will form around State duty of care obligations. National climate change laws and policies, which have doubled roughly every four years since the adoption of the Kyoto Protocol in 1997,²²² are ‘by far the most commonly cited sources of climate obligations’.²²³ At the time of this writing, there are more than 2,250 such laws and policies around the world.²²⁴ This steadily expanding stock of climate legislation will provide plaintiffs with increased flexibility to hold States and private actors accountable for their respective duties of care.

Similarly, the Paris Agreement will remain a valuable source of international law that will help courts contextualise Parties’ domestic mitigation obligations within their larger commitments to the global community. The communication and implementation of Parties’ NDCs, in particular, will likely be a starting point for future legal arguments centred around duties of care and the ‘highest possible ambition’ requirement of Article 4(3). As each NDC must represent a progression in relation to the previous one,²²⁵ plaintiffs will have important comparative reference points.

Whether a climate case concerns substantive domestic policy or the ambition of an NDC, the emerging best practices detailed in the last section offer insight into when a duty of care violation may have occurred. In this respect, Urgenda may be particularly useful in situations that call for a hybrid legal strategy relying on a mix of tort, international, and domestic law. Former UN High Commissioner for Human Rights Michelle Bachelet has not only cited the importance of Urgenda, she has emphasised the ‘even greater importance of it being swiftly replicated in other countries’.²²⁶ Although tort law will vary by jurisdiction, the rights-based aspect of the decision should bolster its replicability, particularly in nations that are Parties to the ECHR. This dynamic can be observed in cases such as Notre Affaire à Tous and Friends of the Irish Environment.

Neubauer, on the other hand, may be more relevant when plaintiffs aim to invoke constitutional protections or the rights of future generations when challenging national climate plans. In particular, the willingness of the German Federal Constitutional Court to derive a State’s duty to allocate fairly over time the burden associated with climate action from constitutional provisions that protect certain freedom rights appears ripe for duplication.²²⁷ This common denominator could thereby serve as the basis for future claims in the climate context with parallels made to the German Constitutional Court’s interpretation of Article 2(2). Similarly, given the disastrous impacts of climate change on ecosystems, the right to a healthy environment, which is enshrined in constitutional or legislative provisions of over 150 States and recognised by the UN General Assembly and UN Human Rights Council, could also provide a legal basis for future climate litigants.²²⁸

Neubauer even opens the possibility that Germany and other States could have a constitutional duty to protect individuals outside its borders from climate impacts. The German Constitutional Court granted the plaintiffs living in Bangladesh and Nepal standing because impacts on those plaintiffs could not ‘be ruled out from the outset’.²²⁹ However, although such a duty is ‘conceivable in principle’,²³⁰ the court declined to address it substantively since the scope of protections abroad are context-specific and not codified in the KSG.²³¹ One possible factor that could establish this climate duty is if ‘the severe impairments already or potentially faced by the complainants due to climate change are caused to some – albeit small – extent by greenhouse gas emissions emanating from Germany’.²³² This obligation would be limited by the difficulty of implementing adaptation measures in other countries²³³ and, therefore, Germany’s theoretical duty to residents abroad would ‘not have the same content’²³⁴ as its domestic equivalent. Nevertheless, the court’s willingness to consider the possibility of a climate duty to individuals outside its borders lays an intriguing foundation for future claims in Germany and beyond.

Another emerging best practice that appears to be ripe for replication is the Milieudefensie court’s reasoning in imposing a climate duty on a corporate actor. It has been argued that it ‘is hard to overstate the consequences of a decision that is already being hailed as a turning point for big oil’.²³⁵ Accordingly, ‘the replicability of the arguments and the international standards and common facts that comprise’ the case ‘will inspire a wave of similar actions around the world’.²³⁶ Thus, the Milieudefensie court’s use of international instruments, such as the UNGP and the Paris Agreement, will likely be instructive beyond the Netherlands’ judicial system as climate litigants shift their attention towards corporations.

9.5 Conclusion

In interpreting the appropriate duty of care, courts have relied on international law and best available science, such as reports from the IPCC, international soft law, and national climate bodies. These cases have largely shied away from ascertaining the exact scope of a State’s duty of care and instead looked at whether the appropriate measures reasonably required to mitigate climate change were adopted. In the process, a range of emerging best practices have taken shape, from the derivation of climate duties from constitutional provisions to the notion that States must each do their best and take climate action no matter their national emissions. Some of these emerging best practices will be more replicable than others, particularly in jurisdictions that share common legal systems as well as similar laws and international commitments with the cases analysed in this chapter. Considering the number of landmark decisions that have addressed duty of care owed by States and corporations in recent years – not to mention advisory opinions on climate change from the International Court of Justice, Inter-American Court of Human Rights, and the International Tribunal for the Law of the Sea in the near term²³⁷ – this is a particularly dynamic area of climate jurisprudence that should continue to evolve rapidly as more cases come to trial.

10 International Atmospheric Trust

Rachel M. Pemberton and Michael C. Blumm *

10.1 Introduction

Climate change litigation is surging in the face of scientific consensus that Earth’s warming over the past century is dramatically interfering with human and natural systems.¹ Given the complexity of the problem, climate change plaintiffs often bring creative claims using ‘unconventional’ legal tools outside the realm of environmental statutes.² One such tool is the public trust doctrine, an ancient doctrine rooted in the writings of Justinian that exemplifies the democratic principle of anti-monopolisation over public resources.³ The public trust doctrine recognises that sovereigns have an inherent duty as an incident of their sovereignty to act as a trustee over public resources.⁴ Although the doctrine was traditionally invoked to protect navigable waters for public use⁵ – particularly in England and the United States⁶ – courts across the globe have expanded the doctrine’s scope in numerous contexts.⁷ This ancient doctrine’s continuing relevance to natural resources law demonstrates its adaptable nature.⁸

Plaintiffs bringing atmospheric trust⁹ claims often face issues of justiciability that do not normally arise when courts apply the public trust doctrine to long-recognised, ‘traditional’ public trust resources – navigable waterways.¹⁰ Nonetheless, understanding the impending threats posed by climate change, several courts have concluded that the atmosphere is within the doctrine’s scope.¹¹ Numerous other courts have at least recognised the public’s strong interest in a properly functioning climate system.¹² This chapter identifies and explores two analytical frameworks evident in international atmospheric trust jurisprudence as emerging best practices: constitutional recognition tied to intergenerational equity and inter-resource affectation.¹³ International jurists can and should continue to employ these frameworks when they evaluate atmospheric trust claims.

This chapter will show that the public trust doctrine protects the atmosphere whenever constitutional language establishes public rights in or the sovereign’s responsibility for air and climate, a healthy environment, or natural resources generally. Many courts have rooted their support for an atmospheric trust in constitutional language, even absent an explicit reference to air or climate, where the relevant constitution establishes common rights in a healthy environment or natural resources.¹⁴ Judicial embrace is strongest when the relevant constitutional provision also speaks to principles of intergenerational equity.¹⁵ Thus, courts appear to be sensitive to the long-term challenges inherent in natural resource management and recognise that the sovereign is in the best position to ensure the continued viability of those resources by exercising its trust duties.

This chapter also illustrates that the atmosphere is subject to the public trust doctrine whenever plaintiffs allege, with supporting scientific evidence, that climate change has impaired their use of traditional public trust resources.¹⁶ Although courts have not always held that the atmosphere itself is a public trust resource, several courts have concluded that threats to non-traditional public trust resources are intricately tied to traditional public trust resources.¹⁷ In at least one court’s view, the connection between the atmosphere and navigable waters is sufficient to bring the atmosphere within the public trust doctrine’s scope as a matter of inter-resource affectation.¹⁸ Likewise, some courts have expanded the public trust doctrine to include groundwater as a trust resource – relying on the scientific consensus that ground and surface waters are interconnected – to hold that when groundwater use affects surface waters, the groundwater must be managed consistent with the public trust.¹⁹ This basic reasoning applies with equal force to the atmosphere, the degradation of which has scientifically demonstrable effects on navigable surface waters.²⁰

The chapter proceeds as follows. Section 10.1 provides additional context and background on the public trust doctrine. Subsequent sections explore the doctrine’s application to the atmosphere. Section 10.2 discusses developments in atmospheric trust case law; Section 10.3 presents the emerging best practices associated with applying the public trust doctrine to the atmosphere in the context of climate change litigation; and Section 10.4 provides guidance on key issues of replicability. The chapter concludes that the public trust doctrine, when analysed by courts under either of the frameworks discussed, gives rise to an atmospheric trust that the sovereign must manage in the public interest and safeguard against substantial impairment.²¹

10.1.1 The Nature of the Public Trust Doctrine

‘The public trust [doctrine] is a dual concept of sovereign right and responsibility.’²² As courts see it, ‘public trust claims are unique because they concern inherent attributes of sovereignty’²³ and do not depend on regulations, statutes, or even constitutions for their force.²⁴ One court in the United States explained that ‘in its broadest sense, the term ‘public trust’ refers to the fundamental understanding that no government can legitimately abdicate its core sovereign powers’.²⁵ Indeed, ‘the public trust imposes on the government an obligation to protect the res of the trust’, and ‘a defining feature of that obligation is that it cannot be legislated away’.²⁶ In other words, with respect to ‘essential natural resources’, ‘the sovereign’s public trust obligations prevent it from depriving a future legislature of the natural resources necessary to provide for the well-being and survival of its citizens’.²⁷ Since it is both a sovereign right and responsibility, the public trust doctrine empowers the sovereign to hold essential natural resources in trust for the public and also requires the sovereign to ensure those resources remain available for public use and enjoyment.

10.1.2 Basic Trust Principles

‘A trust is a type of ownership in which one party manages property for the benefit of another party’.²⁸ The premise of the trust relationship, therefore, is that ‘the trustee is under a fiduciary obligation to manage the assets for the sole benefit of the beneficiaries’.²⁹ These basic principles apply in private and sovereign contexts; ‘in the case of the public trust, the beneficiaries are the citizens’.³⁰ The implication is that if a public asset – such as the atmosphere – does indeed fall within the res of a public natural resources trust, the sovereign trustee must manage that public asset for the sole benefit of the citizen beneficiaries.

As noted by a US court, ‘the natural resources trust operates according to basic trust principles, which impose upon the trustee a fiduciary duty to ‘protect the trust property against damage or destruction’.³¹ Because ‘the trustee owes this duty equally to both current and future beneficiaries of the trust’,³² the natural resources trust is necessarily intergenerational. Moreover, once ‘the existence of a fiduciary duty on the part of the State to protect a public resource’ has been established, ‘the duty would not seem to depend on the source of the threatened harm’.³³ In other words, the sovereign owes a public trust duty regardless of whether the sovereign is involved in bringing about harm or a threat of harm to the public trust res.

The public trust doctrine imposes three categories of restrictions on the sovereign’s authority to administer the natural resources trust.³⁴ First, trust property must ‘be used for a public purpose’ and must also ‘be held available for use by the general public’.³⁵ Second, trust property may never be sold.³⁶ Third, trust property ‘must be maintained for particular types of uses’.³⁷ Although ‘the “traditional” public trust litigation model … centers on the second restriction, the prohibition against alienation of a public trust asset’, a wave of modern public trust litigation asserts that ‘state and national governments have abdicated their responsibilities under the public trust doctrine’.³⁸ Under this modern approach: ‘plaintiffs assert that [sovereigns] have violated their duties as trustees by nominally retaining control over trust assets while actually allowing their depletion and destruction, effectively violating the first and third restrictions by excluding the public from use and enjoyment of public resources.’³⁹ In addition to applying the public trust doctrine to new resources, modern public trust litigation emphasises the public rights that sovereigns have a fiduciary obligation to protect.⁴⁰

10.1.3 Historical Scope of the Doctrine

The public trust doctrine is rooted in ancient Roman legal principles that described certain natural elements – particularly bodies of water – as belonging to the public as a whole. These principles were incorporated into several modern legal systems, including several European countries and England, but nowhere so prominently as in the United States, where it became a cornerstone of public rights in waterways and is evolving to protect public rights in other natural resources.

In the United States, the public trust doctrine has traditionally protected ‘coastlines, harbors, and major rivers and lakes’,⁴¹ or, simply put, navigable waterways. According to Professor Charles Wilkinson, ‘whether valued in terms of economics, recreation, beauty, or spirituality’, these resources are ‘among our most valuable’.⁴² In Illinois Central Railroad Co v Illinois, the seminal public trust doctrine case, the US Supreme Court held that Illinois, like all sovereigns, holds title to lands beneath its navigable waters ‘in trust for the people of the state’, so that ‘they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties’.⁴³ Thus, since its original invocations, the scope of the US public trust doctrine has been closely associated with navigable waters and the values they provide as public resources.

Outside of the US, judicial pronouncement of the public trust doctrine occurred later,⁴⁴ but has been far less tethered to navigable waterways.⁴⁵ For example, in M C Mehta v Kamal Nath, the Supreme Court of India explained that ‘the public trust doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership’.⁴⁶

Interestingly, the court cited the ‘ecological’ reasoning employed in both state and federal cases from the United States to conclude that there is ‘no reason why the public trust doctrine should not be expanded to include all eco-systems operating in our natural resources’.⁴⁷ Although courts in the United States have accepted such ecologically based arguments to extend the public trust res primarily in the context of waters,⁴⁸ international courts have shown a greater willingness to apply this reasoning to other natural resources, including whole ecosystems.⁴⁹

10.1.4 The Rise of an Atmospheric Trust

The rise of atmospheric trust litigation has, in part, been the product of an increased understanding within the international judiciary of the threats posed by climate change and the courts’ role in addressing those threats. For example, the Lahore High Court of Pakistan has recognised that ‘climate change is a defining challenge of our time and has led to dramatic alterations in our planet’s climate system’.⁵⁰ In Pakistan, ‘these climatic variations have primarily resulted in heavy floods and droughts, raising serious concerns regarding water and food security’.⁵¹ Similarly, as one Washington lower court summarised:

Washington and the Pacific Northwest have experienced long-term warming, a lengthening of the frost-free season, and more frequent nighttime heat waves. Sea level is rising on most of Washington’s coast. Coastal ocean acidity has increased. Glacial area and spring snowpack have declined, and peak stream flows in many rivers have shifted earlier. In addition, climate extremes (floods, droughts, fires, and landslides) are already costly to Washington’s [sic] State.⁵²

10.2 Case Law Development

This section explores the developments in natural resource public trust case law. Section 10.2.1 describes the interpretive process and the judicial role in evaluating natural resource public trust claims. Section 10.2.2 discusses the constitutional recognition framework, under which many courts have rooted their support for an atmospheric trust in constitutional language establishing public rights in or the sovereign’s responsibility for air, climate, a healthy environment, or natural resources generally. Finally, Section 10.2.3 introduces what this chapter terms the inter-resource affectation framework, which has been used by courts to bring non-traditional public trust resources under the public trust doctrine’s protection.

10.2.1 Judicial Interpretation of the Public Trust Doctrine

Courts and scholars have recognised that ‘in natural resources cases, the trust property consists of a set of resources important enough to the people to warrant public trust protection’.⁵³ Nonetheless, perhaps the greatest challenge for courts reviewing claims brought under the public trust doctrine is determining when – that is, to which resources – the doctrine applies. According to the Supreme Court of Hawai‘i, ‘the public trust, by its very nature, does not remain fixed for all time, but must conform to changing needs and circumstances’.⁵⁴ Professor Joseph Sax, the father of the modern public trust doctrine, explained, ‘certainly the principle of the public trust is broader than its traditional application indicates’.⁵⁵ As new threats to natural resources arise and the public responds by invoking their rights to the continued use and enjoyment of those resources, the public trust doctrine is sure to evolve.

The judiciary’s role in this evolution is straightforward. As the Arizona Court of Appeals declared in Butler v Brewer, ‘it is up to the judiciary to determine the scope of the doctrine’.⁵⁶ In Butler, which concerned an atmospheric trust claim, the Arizona court reasoned that when ‘precedent does not address the measures by which a resource may be determined to be a part of the public trust or a framework for analyzing such contentions’, it is appropriate for the court to ‘assume without deciding that the atmosphere is a part of the public trust subject to the doctrine’.⁵⁷ Consequently, ‘the fact that the only Arizona cases directly addressing the doctrine did so in the context of lands underlying navigable watercourses does not mean that the doctrine in Arizona is limited to such lands’.⁵⁸ Instead, ‘any determination of the scope of the doctrine depends on the facts presented in a specific case’.⁵⁹ Thus, public trust cases require courts to engage in a fact-intensive inquiry to determine when the doctrine applies.

Not only must courts ‘determine the threshold question of whether a particular resource is a part of the public trust subject to the doctrine, but the courts must also determine whether based on the facts there has been a breach of the trust’.⁶⁰ In Kanuk v State, which also concerned an atmospheric trust claim, the Supreme Court of Alaska explained that because Alaskan courts ‘interpret the public trust doctrine in a constitutional context’, the judiciary ‘has the constitutionally mandated duty to ensure compliance with the provisions of the Alaska Constitution’ when it reviews public trust claims.⁶¹ The court held that ‘whether the State has breached [its fiduciary] legal duty is a question we are well equipped to answer’ once ‘the extent of the State’s duty’ has been judicially determined based on the facts of the case.⁶² If it were not up to the courts to evaluate when a sovereign has abdicated its public trust duties, such an inquiry would have no proper forum.

In fact, although the public trust doctrine is not explicitly laid out in Colombia’s constitution, the Supreme Court of Colombia has held that the fundamental principle of protecting natural resources for the benefit of the population is enshrined in the constitutional right to a healthy environment.⁶³ In Future Generations v Ministry of Environment and Others, twenty-five youth plaintiffs filed suit against the Colombian government for violating their fundamental rights to a healthy environment, life, health, food, and water by failing to curtail deforestation in the Amazon. The court concluded that the protection of fundamental rights is inextricably linked with the protection of nature, and further, that natural resources such as the Amazon Rainforest belong to all inhabitants of the planet, including those as yet unborn.⁶⁴ This recognition of the interconnectedness of fundamental human rights and the rights of nature, and of the shared use by present and future generations of natural resources, are the same basic principles that underpin the protection of natural resources under the public trust doctrine.

Similarly, in Advocates Coalition for Development and Environment (ACODE) v Attorney General,⁶⁵ ACODE sued the Ugandan government for failing to fulfil its duty as trustee of the Butamira Forest Reserve by granting a private permit to harvest firewood from the forest. The High Court of Uganda determined that the Attorney General had failed in his obligations under Article 237(2)(b) of the Ugandan Constitution, which lays out the government’s duty to hold rivers, lakes, and forest reserves, inter alia, in trust for the Ugandan people. By granting the harvesting permit without conducting an environmental impact assessment and without consulting the local communities who rely on the Butamira Forest Reserve for their livelihoods and spiritual practices, the government violated its duty as trustee, and failed in ‘its constitutional and statutory duty to conserve the environment and natural resources equitably and for the benefit of both the present and future generations’.⁶⁶ In this case, therefore, the public trust doctrine was applied not only to natural resource protection, but also to the protection of cultural and religious traditions associated with the resource in question.

This jurisprudence suggests that the public trust doctrine, even in the absence of explicit ‘public trust’ language, may apply more broadly to important natural resources and is flexible enough to evolve with changing societal needs. If so, the judiciary’s role is to determine both when a particular resource falls within the doctrine’s scope and when the sovereign has violated or failed to meet its public trust duties concerning public trust resources.

10.2.2 The Constitutional Recognition Framework

Several courts have rooted their support for an atmospheric trust in constitutional language establishing public rights in, or the sovereign’s responsibility for, air, climate, a healthy environment, or natural resources generally. Some experts ‘observe that cases advancing constitutional theories of climate obligation are swiftly gaining ground in the world’s domestic courts’.⁶⁷ Judicial embrace is strongest when the relevant constitutional provision also speaks to principles of intergenerational equity, which this chapter identifies as an emerging best practice. Judicial recognition of a broad public trust capable of including the atmosphere illustrates that the doctrine is subject to expansion.

10.2.2.1 Air and Atmosphere

An atmospheric trust exists where constitutional language establishes public rights in, and the sovereign’s duty over, air and climate. For example, Article I Section 27 of the Pennsylvania Constitution unequivocally states that ‘the people have a right to clean air’.⁶⁸ That section declares that ‘Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come’, and requires the state, ‘as trustee of these resources’, to ‘conserve and maintain them for the benefit of all the people’.⁶⁹ The state constitution, therefore, embodies two of the three categories of restrictions on the sovereign’s authority to administer the natural resources trust: Trust property must be held available for public use and maintained for public uses.

In Funk v Wolf, the Pennsylvania Commonwealth court explained that the first provision of Section 27 ‘endows the people of Pennsylvania with the right to the described resources’, thereby ‘prevent[ing] the state from acting in ways that would infringe upon such rights’.⁷⁰ By placing Pennsylvania’s natural resources – including clean air – in trust for the people,⁷¹ the second provision enables citizens to bring a legal challenge against government actions and inactions infringing on the rights recognised in the first provision, proceeding upon either or both of two theories: ‘the government has infringed upon citizens’ rights’ or ‘has failed in its trustee obligations’.⁷² The court thereby properly recognised the two categories of restrictions imposed by the Pennsylvania Constitution.

Similarly, in Sanders-Reed v Martinez, the New Mexico Court of Appeals concluded that the state’s constitution ‘recognizes that a public trust duty exists for the protection of New Mexico’s natural resources, including the atmosphere, for the benefit of the people’.⁷³ Section 21 of Article XX of the New Mexico Constitution provides that ‘the protection of the state’s beautiful and healthful environment is hereby declared to be of fundamental importance to the public interest’ and requires the state to ‘provide for control of pollution and control of despoilment of the air’ and other natural resources ‘for the maximum benefit of the people’.⁷⁴ Thus, the court held, ‘the State has a duty to protect the atmosphere’ pursuant to its clear ‘constitutional mandate’.⁷⁵ The court recognised the same two categories of restrictions in the New Mexico Constitution – the sovereign must hold natural resources in trust for public use and maintain those resources consistent with public uses.

The Supreme Court of Hawai‘i in In re Application of Gas Co recently explained that ‘a state agency must perform its functions in a manner that fulfils the State’s affirmative obligations under the Hawai‘i constitution’, including its obligations as a trustee of ‘all public natural resources’.⁷⁶ The Hawai‘i Constitution provides that, ‘[f]or the benefit of present and future generations, the State … shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, and other resources’.⁷⁷ Thus, the court concluded that ‘the state has a continuing duty to monitor the use of trust property, even if the use of the property has not changed’, and that a state agency’s ‘constitutional obligations are ongoing’.⁷⁸

These cases illustrate that where the relevant constitution speaks to public rights in, and the sovereign’s duty over, air or climate, courts have embraced the atmosphere as within the scope of the public trust res. Nevertheless, many other courts have reached the same conclusion where such explicit constitutional language about air or climate is lacking.

10.2.2.2 A Healthy Environment

Several courts have rooted their recognition of an atmospheric trust in constitutional language that establishes public rights in, and the sovereign’s duty over, a healthy environment. Moreover, according to these courts, the right to a healthy environment is inherent in other, constitutionally enumerated fundamental rights. By extension, the sovereign’s maintenance and preservation of a healthy atmosphere are essential to fulfilling the public’s fundamental rights.

As the Supreme Court of the Philippines explained, ‘the right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment’.⁷⁹ The right to a healthy environment, therefore, mandates not only that the state hold trust property – in this context, the environment as a whole – available for public use, but also that the state maintain the environment’s health to ensure the continued viability of the public’s use of trust property. Although the court did not explicitly reference the public trust doctrine in its ruling, the reasoning in the decision is grounded in the idea that natural resources are held in trust by the state. In this way, the right to a healthy environment embodies the first and third categories of restrictions on the sovereign’s authority to administer the natural resources trust: Trust resources must be held open for public use and maintained consistent with public uses.⁸⁰

In Sher Singh v State of Himachal Pradesh, the National Green Tribunal of India unequivocally declared that ‘the citizens of the country have a fundamental right to a wholesome, clean and decent environment’ under India’s constitution.⁸¹ Citing judgments by the Supreme Court of India from the 1980s onward,⁸² the court concluded that ‘Article 21 of [India’s] constitution⁸³ has been expanded to take within its ambit the right to a clean and decent environment’ as part of a broader ‘right to life and personal liberty’.⁸⁴ The court explained that the ‘wide dimensions’ of Article 21 have consistently been construed by Indian courts ‘in the larger public interest’.⁸⁵ Therefore, the court held that the public interest demands that ‘the most vital necessities, namely air … cannot be permitted to be misused or polluted so as to reduce the quality of life of others’.⁸⁶ The court also made clear that when the sovereign enacts environmental statutes and regulations, it must do so consistent with its role as ‘the trustee of all natural resources which are by [their] nature meant for public use and enjoyment’ and of which ‘the public at large is the beneficiary’.⁸⁷ Thus, the court signalled its willingness to review legislation for consistency with the public trust doctrine.⁸⁸

Similarly, the Lahore High Court of Pakistan in Asghar Leghari began its decision by recognising that ‘climate change is a defining challenge of our time and has led to dramatic alterations in our planet’s climate system’.⁸⁹ Against this backdrop, the court determined that ‘[o]n a legal and constitutional plane’, climate change presents a ‘clarion call for the protection of fundamental rights of the citizens of Pakistan’.⁹⁰ Thus, the court pointed to ‘fundamental rights’ in Pakistan’s constitution, emphasising that such rights ‘read with constitutional principles of democracy, equality, [and] social, economic and political justice’.⁹¹ The court focused on Article 9,⁹² the right to life, ‘which includes the right to a healthy and clean environment’, and Article 14,⁹³ the right to human dignity.⁹⁴

The Leghari court concluded that these fundamental rights also ‘include within their ambit and commitment’ numerous environmental principles such as ‘inter and intra-generational equity and [the] public trust doctrine’.⁹⁵ In fact, according to the court, environmental protection has taken ‘center stage’ in Pakistan’s scheme of constitutional rights.⁹⁶ The court was thus satisfied that the fundamental rights articulated in Articles 9 and 14, bolstered by Article 23’s right to property and Article 19(A)’s right to information, provided ‘the necessary judicial toolkit to address and monitor the Government’s response to climate change’.⁹⁷ Therefore, the court held that, concerning climate change measures, the sovereign could not continue on its course of ‘delay and lethargy’ and thereby ‘offend … the fundamental rights of the citizens which need to be safeguarded’.⁹⁸

Finally, in Foster v State Department of Ecology, a Washington lower court accepted petitioners’ characterisation that where the public’s ‘rights to a healthy environment’ are constitutionally protected, those rights are actually protected ‘by the Public Trust Doctrine embodied therein’.⁹⁹ In other words, the court accepted the proposition that a constitutional right to a healthy environment is actually the recognition of inherent public rights in the environment.¹⁰⁰ The court explained that it allowed petitioners’ case to proceed ‘due to the emergent need for coordinated science[-]based action by the State of Washington to address climate change before efforts to do so are too costly and too late’.¹⁰¹ By recognising that petitioners were entitled to an opportunity to ‘show evidence and argue that their government has failed and continues to fail to protect them from global warming’,¹⁰² the court embraced its judicial role to determine when the sovereign has failed to meet its public trust duties.¹⁰³

These cases show that where the relevant constitution speaks to public rights to, and the sovereign’s duty over, a healthy environment, courts have concluded that the atmosphere is within the scope of the public trust res. This right to a healthy environment is inherent in other, constitutionally enumerated fundamental rights. This trend – which has a robust presence in international jurisprudence outside of the United States – indicates that courts understand a stable climate system as necessary to environmental health and well-being.

10.2.2.3 Natural Resources

Some courts have grounded their recognition of an atmospheric trust in constitutional language that establishes public rights in, and the sovereign’s duty over, natural resources generally, even absent an explicit reference to air or climate. As the Pennsylvania Supreme Court noted, when ‘natural resources’ appears, unqualified, in constitutional language, ‘the term fairly implicates relatively broad aspects of the environment, and is amenable to change over time to conform, for example, with the development of related legal and societal concerns’.¹⁰⁴ Indeed, the public trust doctrine is a versatile legal tool for natural resource protection.

Some courts, however, have been unwilling to expand the traditional scope of the doctrine to include natural resources more broadly. For example, in Aji P v State,¹⁰⁵ youth plaintiffs contended that they had ‘alleged valid public trust doctrine claims’ in their complaint against the state of Washington for its reliance on fossil fuels because ‘navigable waters and the atmosphere are intertwined’.¹⁰⁶ In the plaintiffs’ view, ‘to argue a separation of the two, or to argue that [greenhouse gas] emissions do not affect navigable waters’, would be ‘nonsensical’ on the state’s part.¹⁰⁷ However, looking to the Washington State Constitution, which enumerates the traditional definition of state ownership over the beds and shores of navigable waters, the Washington Court of Appeal disagreed.¹⁰⁸

The court concluded that the ‘complaint alleges a violation of the public trust doctrine in relation to the climate system as a whole, including the atmosphere’, whereas ‘Washington has not yet expanded the public trust doctrine to encompass the atmosphere’.¹⁰⁹ Although the plaintiffs maintained that they ‘alleged impairment to traditional Public Trust Resources such as navigable waters and submerged lands’, the court was unpersuaded.¹¹⁰ In fact, the court deemed this a ‘recharacterization’ of plaintiffs’ allegations, paying particular attention to plaintiffs’ assertion in their complaint that ‘the overarching public trust resource is the climate system, which encompasses the atmosphere, waters, oceans, and biosphere’.¹¹¹ In short, by framing the ‘effect on the public’s ability to use, access, enjoy and navigate the state’s tidelands, shorelands, and navigable waters’ as a consequence of climate change,¹¹² the plaintiffs were unable to satisfy the court’s restrictive reading of the public trust doctrine in the context of narrow constitutional language.

In contrast, some courts have accepted that the doctrine applies to all natural resources, including the atmosphere. In Bonser-Lain v State Commission on Environmental Quality, a Texas lower court held that ‘the public trust doctrine includes all natural resources of the State including the air and atmosphere’.¹¹³ The court was unpersuaded by the state commission’s contention that ‘the public trust doctrine in Texas is exclusively limited to the conservation of the State’s waters’, finding this argument ‘legally invalid’.¹¹⁴ The court reasoned that the doctrine had been incorporated into section 59 of Article XVI of the Texas Constitution, which provides that the conservation, development, and preservation ‘of all of the natural resources of this State’ are ‘declared public rights and duties’, and which therefore recognises an expansive public trust res.¹¹⁵

In Held v State, a Montana district court held that the state’s practice of ignoring climate change when approving energy projects may implicate the plaintiffs’ constitutional rights.¹¹⁶ Following Montana Supreme Court precedent, the court concluded that ‘a clean and healthful environment is a “fundamental right” under Article IX of the Montana Constitution’,¹¹⁷ and that this right is linked to the state’s obligation ‘to prevent unreasonable degradation of natural resources’.¹¹⁸ While not explicitly using ‘public trust’ language, the court recognised that the inclusion of a state duty over natural resources in the Montana Constitution provides ‘protections which are both anticipatory and preventative’.¹¹⁹ Indeed, the Montana Constitution does not force the state into allowing a ‘degree of environmental degradation which can be conclusively linked to ill health or physical endangerment’ before the state’s ‘farsighted environmental protections can be invoked’.¹²⁰ Instead, the state has an affirmative duty to protect natural resources from substantial impairment.¹²¹

These cases demonstrate that where the relevant constitution speaks to public rights in, and the sovereign’s duty over, natural resources, courts have interpreted such language to recognise resources beyond those traditionally associated with the public trust doctrine – including the atmosphere – as within the scope of the public trust res. Although language referencing ‘natural resources’ does not bring about the same clear reference to the atmosphere as language concerning the air or climate, broad constitutional language may allow for greater judicial flexibility as the public trust doctrine continues to be applied to new resources and challenges. Moreover, several courts have recognised that the state has affirmative obligations to protect trust resources.

10.2.3 The Inter-Resource Affectation Framework

Although courts have not always concluded that the atmosphere itself is a public trust resource, several have concluded that threats to non-traditional public trust resources are intricately connected to traditional public trust resources. In those courts’ view, this relationship – which this chapter terms ‘inter-resource affectation’ – brings plaintiffs’ claims within the scope of the public trust doctrine. In this way, courts can recognise an atmospheric trust without explicitly defining the scope of the public trust res. Several cases reflect this framework; they primarily arise in the United States where a federalist system of dual sovereigns, the federal government and the states, has produced different definitions of the public trust in different jurisdictions.

The principle of inter-resource affectation is perhaps best illustrated by courts’ recognition of groundwater as within the scope of the public trust doctrine, even though groundwater is not a traditional public trust resource. For example, in In re Water Use Permit Applications for Waiāhole Ditch, the Supreme Court of Hawai‘i concluded that there was ‘little sense in adhering to artificial distinctions’ between groundwater and surface waters – a distinction not ‘borne out in the present practical realities of this state’.¹²² The court reasoned that ‘in other states, the “purposes” or “uses” of the public trust have evolved with changing public values and needs’, including recognition of a ‘distinct public interest in resource protection’.¹²³ Moreover, the court recognised that ‘modern science and technology have discredited the surface-ground[water] dichotomy’ and instead acknowledge ‘the unity of the hydrological cycle’.¹²⁴ Therefore, the court deferred to a state commission’s invocation of the precautionary principle¹²⁵ to protect instream water uses, agreeing that ‘public trust purposes’ (public use of the public trust res) should prevail over diversionary interests.¹²⁶ In reaching its decision, the court was persuaded by the underlying scientific consensus that certain natural resources – here, ground and surface waters – form two parts of a larger, interconnected system.

Similarly, in Environmental Law Foundation v State Water Resources Control Board, the California Court of Appeal affirmed a trial court’s holding that the public trust doctrine applies to groundwater if extraction ‘adversely impacts a navigable waterway’.¹²⁷ In other words, where ‘the removal of water will have an adverse impact on navigable water clearly within the public trust’, the court was satisfied that it could evaluate groundwater pumping for compliance with the public trust doctrine.¹²⁸ Given judicial embrace of an inter-resource affectation framework in the groundwater context, courts have paved the way for this framework to apply to other non-traditional public trust resources, including the atmosphere, where their degradation impairs navigable waterways clearly within the traditional public trust res.

10.3 Emerging Best Practices

This section explores the emerging best practices in atmospheric trust case law. Section 10.3.1 discusses the emerging best practice of constitutional recognition coupled with language that speaks to intergenerational equity. Section 10.3.2 discusses the emerging best practice of applying the inter-resource affectation framework to the atmosphere. Finally, Section 10.3.2 discusses how the inter-resource affectation framework may be most successfully applied when plaintiffs’ claims are grounded in a fundamental constitutional right, such as substantive due process.

10.3.1 Constitutional Recognition and Intergenerational Equity

Constitutional language that speaks to intergenerational equity – in addition to air, climate, a healthy environment, or natural resources – strengthens a court’s application of the public trust doctrine to non-traditional public trust resources, such as the atmosphere. Intergenerational constitutional protection establishes a temporal relationship that mirrors basic trust principles. Because a trustee traditionally owes a duty ‘equally to both current and future beneficiaries of the trust’,¹²⁹ the sovereign owes its duties to current and future generations and cannot sanction substantial impairment of the trust res solely to serve present-day needs.¹³⁰ Even when courts have not used ‘public trust’ language, their discussion of the sovereign’s intergenerational duties with respect to natural resources fits within public trust doctrine jurisprudence.

In Urgenda Foundation v The State of The Netherlands, the Hague District Court held that ‘Article 21 of the Dutch Constitution¹³¹ imposes a duty of care on the State relating to the liveability of the country and the protection and improvement of the living environment’.¹³² The court engaged in a two-part inquiry to determine whether the sovereign was ‘taking sufficient mitigation measures’ to meet its duty of care with respect to climate change.¹³³ First, it asked whether there was an ‘unlawful hazardous negligence on the part of the State’; second, the court assessed the government’s actions in light of ‘the State’s discretionary power’.¹³⁴ Simply put, the court sought to discern whether the state’s duty of care had been triggered and, if so, what actions the state needed to take to meet that affirmative duty.¹³⁵

The Urgenda Foundation court determined that the ‘high risk of dangerous climate change with severe and life-threatening consequences for man and the environment’ triggered the state’s ‘obligation to protect its citizens from [climate change] by taking appropriate and effective measures’,¹³⁶ including mitigation, as plaintiffs had requested.¹³⁷ In other words, the imminence and dangerousness of climate change triggered the state’s duty of care.¹³⁸ Stressing that ‘the possibility of damages for those whose interests Urgenda represents, including current and future generations of Dutch nationals, is so great and concrete’, the court ruled that ‘the State must make an adequate contribution … to prevent hazardous climate change’ consistent with its ‘duty of care’.¹³⁹ Thus satisfied that the state’s duty of care was triggered, the court held that the state was obliged to take effective mitigating and remedial measures.¹⁴⁰

Similarly, in Neubauer and Others v Germany, the Federal Constitutional Court of Germany held that ‘the fundamental right to the protection of life and health enshrined in’ Article 2 of Germany’s Constitution¹⁴¹ ‘imposes on the state a general duty of protection of life and physical integrity’, and therefore ‘obliges the state to afford protection against the risks of climate change’.¹⁴² According to the court, this fundamental right ‘encompasses the state’s duty to protect and promote the legal interests of life and physical integrity and to safeguard these interests against unlawful interference by others’.¹⁴³ In this way, the court equated the state’s obligation to protect against climate change with the sovereign’s public trust duty to safeguard against substantial impairment to the public trust res.¹⁴⁴

The Neubauer court emphasised that the state’s duty ‘does not take effect only after violations have already occurred’, but is instead an affirmative duty ‘oriented towards the future’ that can also be invoked ‘to protect future generations’.¹⁴⁵ The protection required of the state, the court continued, ‘encompasses protection against impairments and degradation of constitutionally guaranteed interests caused by environmental pollution, regardless of who or what circumstances are the cause.¹⁴⁶ The intergenerational scope of this protection, the court reasoned, was necessary ‘[i]n view of the considerable risks’ posed by ‘increasingly severe climate change’¹⁴⁷ and the burden on future generations who will be forced to grapple with amplified climate effects.

Although affording protection to both present and future generations, the Neubauer court distinguished between present and future climate change and the sovereign’s duties to address each.¹⁴⁸ As to present climate change that ‘is not preventable or has already taken place’, the court held that the state must ‘address the risks by implementing positive measures aimed at alleviating the consequences of climate change’.¹⁴⁹ As to future climate change, on the other hand, the court held that the state is obligated ‘to afford protection by taking measures that help to limit anthropogenic global warming and associated climate change’.¹⁵⁰ The court’s reasoning reflected its understanding of the disproportionate climate effects future generations will face, leading the court to distinguish present-day remedial measures from mitigation designed to slow additional climate change.¹⁵¹

Prior to Neubauer, the German legislature had set interim goals with gradual steps to reduce greenhouse gas emissions¹⁵² and an overall goal ‘of achieving climate neutrality in the foreseeable future’.¹⁵³ Although the court concluded that the legislative provisions challenged by plaintiffs had not clearly violated the state’s duty of protection to the present generation,¹⁵⁴ the court nonetheless concluded that those provisions did violate the state’s duty of protection to future generations.¹⁵⁵ The court faulted the legislature for ‘failing to take sufficient precautionary measures to manage the obligations to reduce emissions in ways that respect fundamental rights-obligations that could be substantial in later periods due to the emissions allowed by law until 2030’.¹⁵⁶ Thus, while meeting its obligation to the present generation, the German legislature’s climate goals were insufficient to meet the sovereign’s obligation to future generations.¹⁵⁷

These cases illustrate that, where the relevant constitution speaks to intergenerational equity in connection with the sovereign’s duties to the public, courts have used this language to aid their embrace of an atmospheric trust. Given the long-term, far-reaching threats posed by climate change and the degradation of an inherently ‘public’ resource – the air we breathe – these courts also appear to impose a high burden of proof on the sovereign to show that it is complying with its public trust duties to present and future generations.

10.3.2 Applying the Inter-Resource Affectation Framework to the Atmosphere

The decision of the Oregon Federal District Court in Juliana v United States offers a persuasive application of the inter-resource affectation framework in the atmospheric trust context.¹⁵⁸ In Juliana, twenty-one youth plaintiffs argued that numerous government entities¹⁵⁹ ‘violated their obligation to hold certain natural resources in trust for the people and for future generations’ by deliberately allowing atmospheric carbon dioxide concentrations to reach unprecedented levels.¹⁶⁰ The plaintiffs’ complaint alleged that the government defendants ‘violated their duties as trustees by failing to protect the atmosphere, water, seas, seashores, and wildlife’.¹⁶¹ The defendants countered that ‘plaintiffs’ public trust claims fail because the complaint focuses on harm to the atmosphere, which is not a public trust asset’.¹⁶² The court, however, decided it was unnecessary ‘to determine whether the atmosphere is a public trust asset’ given that plaintiffs had ‘alleged violations of the public trust doctrine in connection with the territorial sea’,¹⁶³ a traditional public trust resource.

The federal district court of Oregon concluded that ‘because a number of plaintiffs’ injuries relate to the effects of ocean acidification and rising ocean temperatures’, plaintiffs had ‘adequately alleged harm to public trust assets’.¹⁶⁴ The court was satisfied that harm to the atmosphere, when it impairs long-recognised public trust resources, implicates the public trust doctrine, effectively applying the inter-resource affectation framework.¹⁶⁵ This reasoning is consistent with prior judicial practice of looking past artificial distinctions between natural resources (such as ground and surface waters) to expand the application of the public trust doctrine beyond those resources traditionally within the public trust res.¹⁶⁶

10.3.3 Inter-Resource Affectation with Constitutional Grounding

Although viable in its own right, the inter-resource affectation framework may find its strongest application when coupled with a constitutional grounding. Unlike constitutional language establishing public rights in air, climate, a healthy environment, or natural resources, a constitutional grounding refers to the public’s fundamental right to engage in the judicial process to hold the sovereign accountable for its exercise of sovereign duties.

For example, the federal court in Juliana included the atmosphere in the public trust doctrine’s scope as a matter of inter-resource affectation.¹⁶⁷ But in Juliana, the court also considered plaintiffs’ claims on constitutional grounds rooted in the US Constitution’s Due Process Clause.¹⁶⁸ Because the court determined that public trust rights were implicit in due process,¹⁶⁹ this constitutional grounding provided the court with a catalyst to vindicate plaintiffs’ public trust rights. Although the sovereign’s public trust duties exist independent of any constitutional recognition, where plaintiffs (and courts) point to a constitutional provision that contemplates the public’s right to enforce those duties, such constitutional grounding can act as a vehicle for judicial recognition of public trust rights.

In Juliana, the youth plaintiffs argued, in addition to their public trust claims, that numerous government entities were violating plaintiffs’ ‘substantive due process rights to life, liberty, and property’ by deliberately allowing atmospheric carbon dioxide concentrations to reach unprecedented levels.¹⁷⁰ The court agreed, holding that plaintiffs had ‘adequately alleged infringement of a fundamental right’.¹⁷¹ According to the court: ‘Where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation.’¹⁷² As the court saw it, ‘to hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink’.¹⁷³ In other words, these fundamental rights need not be explicitly stated in a constitution to benefit from constitutional protection.

The federal district court proceeded to rule that ‘plaintiffs’ public trust rights both predated the [US] Constitution and are secured by it, although plaintiffs’ right of action to enforce the government’s obligations as trustee arises from the Constitution’.¹⁷⁴ The court explained that ‘the Due Process Clause’s substantive component safeguards fundamental rights that are “implicit” in the concept of ordered liberty’ or ‘deeply rooted in this Nation’s history and tradition’.¹⁷⁵ According to the court, ‘[p]laintiffs’ public trust rights, related as they are to inherent aspects of sovereignty and the consent of the governed from which the United States’ authority derives, satisfy both tests’.¹⁷⁶ In other words, the Due Process Clause – and its protection of fundamental rights – acted as a vehicle for the court to consider plaintiffs’ fundamental public trust rights.¹⁷⁷

10.4 Replicability

As noted earlier, even in countries where the public trust doctrine is not explicitly enshrined in the legal tradition, constitutional protection to a healthy environment, natural resources, or intergenerational equity, may offer an avenue for courts to apply the principles of the public trust doctrine. Given the protection afforded these rights in constitutions around the world, this feature of emerging best practice appears to be highly replicable.

However, unlike the constitutional recognition framework – an emerging best practice that is well represented in international case law – the inter-resource affectation framework is ripe for further development. The takeaways from Juliana and Aji P illustrate how plaintiffs and judges can engage in that development.

The Juliana court’s discussion of substantive due process indicates that where the relevant constitution does not contain express language establishing public rights in or the sovereign’s responsibility for air, climate, a healthy environment, or natural resources, the strength of a plaintiff’s atmospheric trust claim can rest upon the ties the plaintiff establishes between climate change and traditional public trust resources – that is, upon inter-resource affectation. Although the court in Aji P failed to apply the inter-resource affectation framework, it does not foreclose atmospheric trust claims more explicitly rooted in the impairment of traditional public trust resources. Referring to climate change impacts ‘on already-recognized public trust resources such as water, shorelines, wildlife, and fish’, the Supreme Court of Alaska has recognised that ‘[a]llegations that the State has breached its duties with regard to the management of these resources do not depend on a declaratory judgment about the atmosphere’.¹⁷⁸ Therefore, a court need not decide that the atmosphere is a public trust resource to consider the effects of climate change on traditional public trust resources under the inter-resource affectation framework.

Had the Aji P plaintiffs claimed that greenhouse gases, particularly dissolved carbon dioxide, create higher river and stream temperatures that impair the public’s ability to fish and recreate in those waters, the court would have been more likely to see this injury as directly tied to plaintiffs’ use of traditional public trust resources. Likewise, the navigability of traditionally navigable waters has been and continues to be threatened by climate change.¹⁷⁹ Because climate change stresses water availability and thereby alters the structure of rivers and streams,¹⁸⁰ a claim of impairment to navigability could bolster an atmospheric trust claim where a plaintiff cannot assist her position with helpful constitutional language. In other words, alleging impairment to navigable waterways as a result of climate change, rather than alleging impairment to the climate that in turn affects navigable waterways, frames the issue in terms more closely aligned with a limited reading of a narrow state doctrine.

10.5 Conclusion

Courts around the world have applied the public trust doctrine to the atmosphere in the context of climate change litigation using two analytical frameworks: constitutional recognition and inter-resource affectation. Under the first framework, constitutional recognition, sovereigns recognise – and courts enforce – the ecological importance of protecting air, climate, a healthy environment, and natural resources based on constitutional language establishing public rights to and the sovereign’s duty over such resources. Constitutional recognition is strongest when the relevant constitutional language also speaks to principles of intergenerational equity, an emerging best practice. Under the second framework, inter-resource affectation, courts recognise the inherent ecological ties between navigable waters and other resources. Using this approach, at least one court has held that the atmosphere falls within the public trust doctrine’s scope even when the atmosphere is not defined as an asset within the public trust res, another emerging best practice.

Judicial invocation of either of the discussed frameworks gives rise to an atmospheric trust that the sovereign must manage in the public interest consistent with trust principles. Once courts recognise the atmosphere as within the scope of the public trust res, the sovereign can no longer shirk its fiduciary duty to ‘protect the trust property against damage or destruction’¹⁸¹ by allowing climate change to progress unabated.

11 Rights of Nature

Susana Borràs-Pentinat *

11.1 Introduction: Towards an Ecocentric Approach within Climate Litigation

The protection of Nature¹ is one of the most effective ways to face climate change and must be an essential part of all plans to reduce global warming. Nature-based solutions to climate change, sometimes called ‘natural climate solutions’, involve the conservation, restoration, and better management of ecosystems to help remove carbon dioxide (CO₂) from the atmosphere. Effective use of nature-based solutions would make it possible to reduce global greenhouse gas emissions by up to a third by 2030.² The Working Group II contribution to the Intergovernmental Panel on Climate Change Sixth Assessment Report provides new and valuable insights into the importance of supporting natural pathways to reduce climate risks and, at the same time, improve people’s lives.³ Natural ecosystems not only contribute to reducing climate change by capturing CO₂ from the air and sequestering it in plants, soils, and sediments but also provide a wide range of other important benefits, such as cleaner air and water, economic benefits, and increased biodiversity, thereby bolstering our human rights and existence.

Therefore, it is not surprising that Nature has emerged in some climate cases as a core (or collateral) element to be protected and a novel aspect for judicial discussions on climate change.

Likewise, the recognition of the rights of Nature and the ecocentric reinterpretation of the legal framework through climate cases contribute to reinforcing the rights of human beings to live in a healthy and clean environment, as well as granting Nature its own rights.⁴ The ‘ecocentric’ perspective holds that the Earth’s ecology and ecosystems (including its atmosphere, water, land, and all forms of life) have intrinsic value and seeks to protect environmental organisms even if they cannot be used by humans as resources. An ecocentric interpretation of law therefore places importance on the natural world, and although it may not involve the direct recognition of the rights of Nature, it is a step in that direction. In this chapter, the focus is particularly on an ecocentric interpretation as a transition to interpretations that ultimately uphold the rights of Nature in the context of the climate emergency. This interpretation is particularly critical in light of the debate regarding the appropriateness and ability of human rights to protect the environment from human impact.⁵

In fact, the personification of the environment through ecocentric legal interpretations continues to grow in popularity worldwide because it is an idea that ordinary people and communities can understand and support. This legal interpretation establishes scaffolding to shift the way humans see Nature from property to an understanding of the interconnected relationships between trees, lakes, and rivers. This view is not new for many Indigenous peoples around the world who see Nature not as separate from humans but rather as made up of beings in relation to themselves.

Therefore, the objective of this chapter is to identify emerging best practice in climate litigation on the topic of rights of Nature in judicial decisions to date. Section 11.2 analyses how courts have dealt with arguments relating to rights of Nature or incorporate an ecocentric perspective. Section 11.3 focuses on how courts have progressively introduced this ecocentric interpretation into climate litigation, contributing to emerging best judicial practice. Finally, Section 11.4 outlines the possibility of replicating some of the best practices in future litigation.

11.2 State of Affairs: Rights of Nature before Courts

Nature has traditionally been afforded legal protection because of the simple material, genetic, or productive utility it represents for human beings. In many countries, however, particularly in the Global South, rights of Nature have been recognised due to the relationship of particular populations with their local environments. This recognition stems from an understanding of the inherently exceptional value of certain natural resources, as well as from the ecological and cultural dependence of some populations on Nature for subsistence. For many Indigenous communities, Nature is not simply a resource for survival but also a source of spirituality and sacredness, forming a basis for traditional cultures rooted in the interconnectedness of all living beings. However, modern levels of overexploitation and domination leave ecological systems and human cultures in critical condition. This vulnerability is aggravated by the climate emergency, which highlights the need to approach environmental protection from a more ecocentric perspective, rather than the traditional anthropocentric rule of law.

The rights of Nature have been commonly understood as ‘the rights of the non-human species, elements of the natural environment and … inanimate objects for a continuous existence not threatened by human activities’.⁶ Some jurisdictions go even further. The Ecuadorian Constitution of 2008 states in Article 71 that: ‘[t]he nature or Pacha Mama’ is ‘where life is realized’ and that ‘she has the right to have her existence fully respected and the maintenance and regeneration of [her] vital cycles, structure, functions and evolutionary processes’. In addition, the Constitution provides that ‘[e]very person, community, people or nationality may require the public authority to comply with the rights of nature’ and, in Article 72, Nature is granted the right to restoration.⁷

Some judicial bodies in the Global South have recently linked the climate question to the ecological perspective, recognising constitutional protection for other forms of life beyond human life and acknowledging that an ecologically balanced environment is indispensable if fundamental rights are to be preserved. Recognition of the human rights dimensions of climate change is no longer sufficient to secure life in the climate emergency. Therefore, the new ecocentric interpretation of law qualifies as emerging best judicial practice, as it highlights Nature’s right to be protected, directly or indirectly, as an important element for consideration in climate litigation.⁸

Ecuador, Bolivia, New Zealand, Bangladesh, Brazil, Colombia, and Mexico, among other countries,⁹ have either issued court decisions, enacted laws, or amended constitutions recognising the legal rights of Nature. Panamá recently enacted a ‘Rights of Nature Law’, guaranteeing the natural world’s right to exist, persist, and regenerate.¹⁰

The recognition of the rights of Nature’s different elements has proliferated in various jurisdictional venues. A good example is Ecuador, where two individuals brought an ‘Accion de Proteccion’ against the Provincial Government of Loja ‘in favour of Nature, particularly in favour of the Vilcabamba River’.¹¹ The Criminal Chamber of the Court ruled that the government had violated the constitutional rights of the Vilcabamba River to exist and maintain its life cycles, structure, functions, and evolutionary processes by conducting excavation for the construction of a new provincial road. This case was the first success story of the rights of Nature under Article 71 of the Ecuadorian Constitution. The Chamber accepted that ‘the action for protection is the only suitable and effective way to put an end to and immediately remedy focused environmental damage’. The judges applied the precautionary principle:

[U]ntil it is objectively demonstrated that there is no probability or certain danger that the work carried out in a certain area will produce pollution or cause environmental damage, it is the duty of the constitutional judges to immediately protect and make effective the judicial protection of the rights of Nature, carrying out whatever is necessary to prevent it from being polluted, or to remedy it. Note that we even consider that in relation to the environment, we do not only work with the certainty of damage, but we aim at the probability¹²

The Chamber also recalled that the Constitution:

without precedent in the history of humanity, recognises nature as a subject of rights …; it assumes as an evident and indisputable fact the ‘importance of Nature’, to such an extent that it considers ‘that any argument in this respect is succinct and redundant’, incorporating in the decision the idea that the damage caused to it is ‘generational damage’, which it defines as ‘that which by its magnitude has repercussions not only on the current generation but that its effects will have an impact on future generations’¹³

The global case law to date has covered not only the protection of Nature itself, but also the protection and preservation of intangible and spiritual assets, such as sacred sites or ancestral knowledge. For example, in 2017, the High Court of the Indian state of Uttarajand ruled that the Ganges and its main tributary, the Yamuna, both considered sacred by millions of Hindus, were living beings and, as such, had the right to be legally protected and not to be harmed and could be parties to disputes.¹⁴

Through this ruling, the Court explicitly recognised the rivers’ legal personality. The Court ordered that the two rivers be represented by the director of the National Clean Ganga Mission, a government body that oversees projects and conservation of the river, as well as by the state’s chief secretary and advocate general. This order served to protect the rivers from increasing pollution caused by both locals and thousands of visitors to this Himalayan region.¹⁵ However, the Court stayed the ruling on appeal.

Similarly, New Zealand has declared the Whanganui River a living entity and appointed two guardians to protect its interests. While New Zealand has not yet formally adopted Nature’s rights in any statutory or constitutional law, the nation has already recognised that Nature can have inherent rights by granting legal personality to lands and rivers. Thus, in 2013, the Tūhoe people and the New Zealand government agreed upon the Te Urewera Act, giving the Te Urewera National Park ‘all the rights, powers, duties, and liabilities of a legal person’.¹⁶

In other countries, the rise of an ecocentric interpretation of law has taken the form not of the attribution of rights to Nature, but rather of obligations to protect Nature. Countries such as Switzerland, Portugal, France, Colombia, and Brazil have specified a set of governmental obligations to Nature and its protection. Colombia, in fact, offers a key example of the possibilities. In one decision, the Colombian Constitutional Court described the ecocentric interpretation as follows: ‘It is a principle that radiates through the entire legal order corresponding to the State responsibility to protect the natural wealth of the Nation; 2. It is a constitutional (fundamental and collective) right held by all people through various judicial channels; and 3. It is an obligation of the authorities, society and individuals, by involving qualified duties of protection.’ In addition, the Constitution establishes ‘environmental sanitation as a public service and fundamental purpose of state activity’.¹⁷

The Constitutional Court refined this interpretation in the Atrato River case,¹⁸ in which ethnic communities sued Colombia for illegal mining in the department of Chocó. The Court recognised the ‘attribution of rights to Nature’ and the obligation to guarantee the protection, conservation, maintenance, and restoration of the Atrato River and Nature in general. The Court declared that the environment’s ‘integral elements … can be protected per se and not simply because they are useful or necessary for the development of human life’, and therefore that ‘the protection of the environment goes beyond the mere utilitarian notion’.¹⁹ The Court also extended the protection to include ‘biocultural rights’: rights to life, health, water, food security, a healthy environment, and, importantly, to the culture and territory of the ethnic communities (Black and Indigenous) that inhabit the Atrato River basin and its tributaries.

The Court stated:

[J]ustice with nature must be applied beyond the human scenario and must allow nature to be the subject of rights. It is under this understanding that the chamber considers it necessary to take a step forward in jurisprudence towards the constitutional protection of one of our most important sources of biodiversity: the Atrato River. This interpretation finds full justification in the superior interest of the environment, which has been widely developed by constitutional jurisprudence and which is made up of numerous constitutional clauses that constitute what has been called the ‘Ecological Constitution’ or ‘Green Constitution’. This set of provisions makes it possible to affirm the importance of a healthy environment and the interdependent link between human beings and the State.²⁰

Following the trend of recognising rights of Nature and reinterpreting the different normative frameworks, the Advisory Opinion of the Inter-American Court of Human Rights (OC-23/17) stated:

The Court considers it important to stress that, as an autonomous right, the right to a healthy environment, unlike other rights, protects the components of the environment, such as forests, rivers and seas, as legal interests in themselves, even in the absence of the certainty or evidence of a risk to individuals. This means that it protects nature and the environment, not only because of the benefits they provide to humanity or the effects that their degradation may have on other human rights, such as health, life or personal integrity, but because of their importance to the other living organisms with which we share the planet that also merit protection in their own right. In this regard, the Court notes a tendency, not only in court judgments, but also in Constitutions, to recognize legal personality and, consequently, rights to nature.²¹

11.3 Emerging Best Judicial Practice: Nature Protection to Face Climate Change

In climate litigation, arguments to recognise the ecocentric interpretation of law or even rights of Nature have begun to appear in different judicial cases worldwide as an important avenue through which to address climate change. The appearance of those novel elements in environmental court cases has allowed the development of certain judicial good practices to protect the rights of both humans and Nature against environmental degradation. Arguments constituting best practice have emerged by asking judges to consider an ecological interpretation of law when a particular activity has been found to be unacceptably harmful to the environment and living things. In other cases, courts have addressed the importance of the ecological integrity and intrinsic value of Nature, moving away from the utilitarian protection of Nature purely for the benefit of humans.²² Another novel argument has been to prioritise the protection of vulnerable ecosystems over the expansion of carbon-based and greenhouse gas-generating activities, which compromise not only the well-being of Nature but also climate goals. Finally, certain cases have sought recognition of the right to a safe and stable climate based on the protection of the atmosphere as a common public good. It should be noted, however, that although all these practices incorporate an ecocentric interpretation of law, some still favour the rights of humans over those of Nature.²³

In cases where emerging best practice has been identified, judges have focused their arguments on the rights that some legal systems already attribute to Nature, thus approaching an ecocentric interpretation of the law. Judges have especially relied on the right to integral conservation, the right to restoration, precaution against extinction of species and non-introduction of genetically modified organisms, and non-appropriation of environmental services. This practice is particularly innovative where the legal systems in question do not expressly recognise the rights of Nature.²⁴

The following analysis will attempt to identify emerging best practice in the introduction of the rights of Nature to climate jurisprudence. The evolution of an ecocentric interpretation of law can be observed in several stages, beginning with the assumption of environmental degradation and its impact on human rights, followed by the recognition of the integrity per se of natural elements, and ultimately legal recognition of the rights and subjectivity of Nature or at least of some of its elements.

11.3.1 Reparation of Ecological Harm

The need to repair and restore the ecological harm done to certain natural elements that are important for life can be identified as emerging best practice in climate litigation to date. Nature conservation and protection is not only a matter of ensuring the well-being of future human generations, but also a matter of doing justice to non-human living beings, who are equally affected by climate change. Hence, the ecocentric interpretation of law has developed in such a way as to promote ecojustice or ecological justice. This section will discuss several cases in which the argument of reparation of ecological harm was used successfully.

In Australia, in the case of Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited,²⁵ the Court rejected the cost–benefit analysis presented by Warkworth Mining Limited in its appeal. This cost–benefit analysis sought to estimate, in monetary terms, the costs of the main intangible environmental, cultural, and social impacts of the expansion of the Warkworth Mine. The Court found that the analysis did not consider issues of equity or distributive justice by failing to give adequate regard to the entities on whom the mine’s burdens would fall. Among the entities identified were threatened fauna in the area of disturbance and other components of biological diversity (such as ecological communities). The Court found that the integrity, stability, and beauty of these environmental components would be unacceptably impacted by the mine. This argument focuses not only on the benefits of biodiversity and ecosystem services for humans, but also on the additional concept of biodiversity and its elements as entities that have intrinsic value.²⁶

The ecocentric interpretation of law in terms of ecojustice has been used not only to force reparation of ecological harm, but also as a moral argument to respect biodiversity. In Shrestha v Prime Minister’s Office of Nepal and others,²⁷ the plaintiff’s main request was for the government to enact a new climate law. The case presents, among other arguments, the severe impacts of environmental degradation, including climate change, on non-human life forms, biodiversity, wildlife, and ecosystems. Accordingly, the Nepalese Supreme Court declared:

Climate change, exploitation of natural resources and environmental pollution have posed a threat to the existence of ecology and biodiversity. Such threats do not just affect the organisms living today but also cause irreversible damage to nature and pose an imminent threat to future generations. The matter of climate change and [the] threat posed by pollution is directly connected to the well-being of citizens who are guaranteed the right to clean environment and conservation under the Constitution.²⁸

The Court thus recognised the need for moral, balanced, and responsible usage of the ecological resources that sustain humans and the lives of other organisms.

The concept of ‘ecological harm’ and arguments in favour of ecojustice are also found in the case Notre affaire à tous and Others v France (L’affaire du siècle).²⁹ The plaintiffs argued for the recognition of a new general principle of law relating to the right to live in a sustainable climate system, also based on the concept of pure ecological damage (‘préjudice écologique’) as recognised in the French Civil Code. The court ruled that compensation for ‘ecological damage’³⁰ was admissible and declared that the state ‘should be held liable for part of this damage if it had failed to meet its commitments to reduce greenhouse gas emissions’. The recognition of ‘pure’ ecological damage, suffered exclusively by Nature, allows for an expansion of the system of civil liability for environmental damage, which was traditionally based on indirect damage suffered by the environment (damage to property, economic loss, and personal injury), as a mere instrument or object rather than the ‘victim’.³¹

Reparation of ecological harm, therefore, abstractly represents the rights of Nature, or at least an ecocentric interpretation of law, because it allows plaintiffs to claim pure ecological harm, a harm that only affects ecosystems. It represents a significant step towards a kind of ‘punitive ecology’, which imposes measures and sanctions to bring about changes that respond to environmental damage and favour environmental protection.

11.3.2 Preservation of Ecological Integrity and the Intrinsic Value of Nature

In some climate litigation cases that have adopted an ecocentric approach, judges have based their decisions on another argument: the intrinsic value of natural elements. This argument recognises Nature’s inherent value, its naturalness and wildness, and its degree of independence from human influence.³² From this perspective, the extension of Nature’s rights to ecosystems and species is a form of protection of Nature itself.

This argument is included in one of the first pieces of climate change litigation in Brazil, PSB and others v Brazil (on Climate Fund),³³ filed on 5 June 2020, as a Direct Action of Unconstitutionality for Omission before the Brazilian Federal Supreme Court. The action challenged the Federal Union’s failure, and specifically the lack of efforts by the National Climate Change Fund (Fundo Clima), to adopt administrative measures with the goal of supporting projects, studies, and financial activities aimed at climate change mitigation and adaptation. In a preliminary decision the court recognised the interconnections between the right to a healthy environment and other human rights (right to life, health, food security, labour), as well as the impacts of ecological disequilibrium on the livelihoods and cultural identity of traditional communities and Indigenous peoples.³⁴

The Supreme Court found that the Federal Union, through its lack of action, had violated its obligation to protect Nature, as established in the Brazilian Constitution and in accordance with the precautionary principle.³⁵ The Court based its argumentation mainly on article 225 of the Constitution, which is the ecological matrix of the Brazilian legal system.³⁶ The article imposes a set of positive and negative duties on the state related to environmental protection: preserve and restore ecological processes; promote the ecological management of ecosystems; define special protected territorial spaces and their components; and protect fauna and flora.³⁷ The Supreme Court incorporates a kind of constitutionalisation of climate change, as it admits its importance in the constitutional protection of not only human life but also non-human life, due to its intrinsic value and the essential contribution of an ecologically balanced environment to the effectiveness of other fundamental rights.³⁸

The Brazilian Supreme Court cited two important decisions of the Inter-American Court of Human Rights (IACHR) to connect the State’s duty to protect biodiversity with the rights of Nature.³⁹ In the IACHR Advisory Opinion No. 23/2017, the Court established that the right to a healthy environment is a fundamental human right⁴⁰ and further stated that it is a state’s duty to protect Nature because of Nature’s inherent importance, distinct from its importance to humans.⁴¹ The second decision mentioned is the judgment in Indigenous Communities of the Lhaka Honhat Asociation (Our Land) v Argentina,⁴² where the IACHR stated that a state has the duty to ‘respect’, ‘guarantee’, and ‘prevent’ damage to the environment, as well as the responsibility for ensuring the right to food security and access to water, in particular for Indigenous communities.⁴³

Referencing these arguments, the Brazilian Supreme Court in PSB and others recognised that ‘the damage caused to the environment compromises biodiversity, fauna and flora, which represent enormous economic potential and a differential for the country. They undermine Brazil’s credibility internationally and its ability to raise funds to fight deforestation and reduce greenhouse gases’.⁴⁴

Another case pending before the Federal Supreme Court in Brazil is the Political Parties v Union (Brasil) (on deforestation and human rights),⁴⁵ through Direct Action of Unconstitutionality by Omission to denounce the deforestation. The case raises the compliance of the Action Plan for the Prevention and Control of Deforestation in the Amazon (PPCDAm) and the lack of ambition of Brazil’s Nationally Determined Contribution (NDC) to sanction illegal deforestation, as well as to achieve an 80 per cent reduction in the rate of deforestation. It also alleges non-compliance with Article 225 of the 1998 Federal Constitution (CF/88), concerning the ecological balance of the environment, and calls for urgent precautionary measures.

Although not found in an express provision on the constitutional level in the European Union (EU), the intrinsic value of Nature is contained in directives and case law on Nature conservation. The assessment of significant effects on the integrity of ‘Natura 2000’ sites had relevance in case C-404/09, European Commission v Kingdom of Spain.⁴⁶ The European Commission alleged that Spain approved two open-cast coal-mining projects within protected areas of the Natura 2000 network without properly evaluating the environmental impacts of the mines. An investigation confirmed not only the existence of several open-pit coal-mining operations, but also that the open-pit mining activity was going to continue through newly authorised operations and those in the process of authorisation.

The Court of Justice of the European Union determined that the possible effects on the most vulnerable species had not been taken into account during the authorisation procedure, as required by the provisions of Directive 85/337 on Environmental Impact Assessment. This Directive requires the description and assessment of the important environmental effects of the disputed projects, including ‘the direct, indirect and cumulative effects in the short, medium and long term … permanent or temporary’ on all plant and animal life, soil, water, air, climate and the landscape, material assets and cultural heritage, as well as the interaction between them. With regard to the EU Directive 92/43 on habitats, the Court held that the consequences of these mining operations on grouse and brown bear cannot only be assessed in terms of direct destruction of critical areas, but must also be assessed with consideration for the greater fragmentation, deterioration, and destruction of potentially suitable habitats for their recovery, as well as the increase in disturbances for these species due to development.⁴⁷

In Save Lamu et al v National Environmental Management Authority and Amu Power Co. Ltd,⁴⁸ the appellants challenged the issuance of an environmental and social impacts assessment (ESIA) licence to a coal-fired power plant that was to be located in the coastal Lamu County in Kenya.⁴⁹ Incorporating environmental and human welfare considerations, the Kenyan National Environmental Tribunal found, through the implementation of the precautionary principle, that such a project could increase the possibility and potential for acid rain, thereby killing fish and plants, as well as causing other adverse effects on forests, soil, and vegetation as a whole. Therefore, the tribunal ruled that if Amu Power Co. chose to continue with the project, it would have to carry out a new ESIA to prevent ecological damage.

Although climate change is not at the centre of the Tribunal’s analysis in these cases, mining activities have a significant impact on the Earth’s climate system. Therefore, environmental impact assessment of these activities has a very important contribution to make to safeguarding the ecological integrity of natural areas and preventing further climate impacts.

11.3.3 Recognition of Rights of Nature and the Protection of Fundamental Rights

Best practice has also emerged in cases where courts have relied on fundamental rights to recognise the rights of Nature. The first successful climate case introducing the personhood of natural resources in Colombia was before the Supreme Court, in the case Future Generations v Ministry of the Environment and Others.⁵⁰ In its ruling, the Supreme Court adopted an ecocentric conception of the rule of law by recognising the rights of Nature. The Court declared the Amazon, as an ecological region and as an entity, a ‘holder of protection, conservation, maintenance, and [restoration] from the State and its territorial entities’.⁵¹ It further described the Amazon as a ‘vital ecosystem for the global future’, and stated that, in order to protect it, the Amazon is recognised as an entity ‘subject of rights’.⁵²

The Court based its decision on arguments focused on alterity and solidarity not only for every human on the planet in both present and future generations, but also for animals and plants, based ‘(i) [on the] ethical solidarity duty of the species and (ii) in the intrinsic value of nature’.⁵³

In addition, the inherent meaning of ecojustice is evident in this case. The main reason for the Court’s decision and ecocentric approach was the fact that deforestation of the Amazonian forest had already generated an increase in greenhouse gas emissions and temperature. In the view of the Court, these increases violated the rights of present and future generations. The absence of necessary efforts to prevent global warming also affected the ecological integrity of the ecosystem and the survival of other species. The Supreme Court went beyond the anthropogenic perspective and reiterated the ecocentric perspective, adopting a ‘green’ reading of constitutional postulates. In particular, the Court held that the concentration of greenhouse gas emissions in the atmosphere due to the deforestation of the Amazon causes imminent and serious damage not only to the plaintiffs but to all the inhabitants of the Colombian territory and of the entire planet. This argument includes recognition of extraterritoriality and a collective consideration of the right to a healthy environment. In this sense, the Court explains:

The principle of solidarity, for the specific case, is determined by the duty and co-responsibility of the Colombian State in stopping the causes that cause GHG emissions caused by the abrupt reduction forest of the Amazon, being imperative to adopt immediate mitigation measures, protecting the right to environmental well-being, both to the guardians, like the other people who inhabit and share the Amazonian territory, not only the national, but the foreign, along with all the inhabitants of the globe, including ecosystems and living beings.⁵⁴

The constitutional parameters invoked in this case by the plaintiffs are the same as in the Atrato River case (right to life, health, and a healthy environment). However, the major difference between the two cases is that, here, the principle of solidarity applies to Nature for the benefit of future generations, in the sense that the claimants are recognised as having rights as representatives of future generations who will be primarily affected by climate change.⁵⁵

The Colombian Supreme Court’s decision in this case represents a significant step from an anthropocentric model of environmental law to a more ‘anthropic ecocentric’ model. This transition is evident when the Court recognises that the ‘fundamental rights of life, health, the minimum subsistence, freedom, and human dignity are substantially linked and determined by the environment and the ecosystem’.⁵⁶ In addition, the Court underlines the need to establish a relationship of intragenerational equity between species based on the ethical duty of solidarity that must exist between humans and Nature.⁵⁷ Ultimately, the Court declared that the Colombian Amazon was entitled to protection, conservation, maintenance, and restoration, and ordered the government to develop and implement action plans to halt deforestation.

Other cases in Ecuador reflect an ecocentric perspective to confront the climate crisis, although some of these cases do not appear in climate litigation databases. The Ecuadorian courts have considered the rights of Nature in various cases centred on mining activities, oil, and energy production that influence climate governance.⁵⁸ A lawsuit filed by several Indigenous girls from the Ecuadorian Amazon sought to eliminate more than 400 gas-burning lighters associated with the exploitation of crude oil in that region – which caused the plaintiffs to suffer severe chronic diseases.⁵⁹ The action was initially denied. On appeal, however, the court ruled in favour of the plaintiffs.⁶⁰

The decision recognises the violation of the rights of health, Nature, and a healthy environment, as well as the systematic failure of the Ecuadorian state to comply with international obligations on climate change. According to the Court, ‘it is the obligation of the State, to put into mobility, the application of the precautionary principle that is based on the scientific doubt of this or that reaction caused by the activity of gas flaring in the so-called lighters’. The Court also states that ‘nature is being affected, and its constitutional rights are being violated … since the burning of gas affects the air, biodiversity, due to the fact that this activity directly sends greenhouse gas emissions’ and that ‘with the burning of gas resulting from the hydrocarbon extractive activity, the constitutional rights of the inhabitants living in the area of influence of the aforementioned activity are not recognised’.⁶¹

A similar case was filed by civil society organisations and members of the Waorani Indigenous people of Miwaguno⁶² in northeastern Ecuador, seeking to hold the Chinese oil company PetroOriental⁶³ that operates in the Amazon accountable for the burning and venting of gas in lighters during oil extraction and the consequent atmospheric pollution and direct effects on climate change. The plaintiffs argue that the company’s actions constitute a permanent violation of human and Nature’s rights. This lawsuit was the first in Ecuador to exclusively appeal to the relationship between human and environmental rights and climate change.⁶⁴ The Court considered that protecting Nature and preventing and mitigating the effects of climate change are necessary to guarantee the constitutional rights of the inhabitants of the affected communities and to prevent future violations in similar circumstances. The constitutional rights of Indigenous peoples are violated by the significant contribution of greenhouse gas emissions to climate change, especially carbon dioxide, methane, soot, nitrous oxide, ozone, and water vapour. This violation of human rights comes in tandem with, and because of, a violation of the right of Nature to be protected, demonstrating the vital interdependence between the two.

In an unprecedented case, the Constitutional Court of Ecuador applied the constitutional provision on the rights of Nature. In the case Reserva Los Cedros v Ecuador,⁶⁵ the Court recognised the rights of Nature to safeguard the Los Cedros cloud forest from mining concessions. The Court ruled that the government of Ecuador is obligated to apply Article 73 of the Ecuador Constitution, which requires precautionary and restrictive measures be taken to prevent the extinction of species:

It’s not about a college or a conditioned option, but from a constitutional obligation derived from the intrinsic valuation that the Constitution makes of the existence of species and ecosystems, through the rights of nature. Indeed, the risk in this case is not necessarily related to affectations to human beings, although they can be included, but to the extinction of species, destruction of ecosystems or permanent alteration of natural cycles or other types of serious or irreversible damage to nature, regardless of such damage.

Based on the UN Framework Convention on Climate Change and other international norms, the Court also acknowledged: ‘The Constitution expressly adds as part of this right to have a pollution-free environment, since pollution is one of the forms of human intervention in the environment that accelerates its degradation and makes it uninhabitable for himself and other living beings.’ Consequently, the Court ruled that mining and all kinds of extractive activities in the Los Cedros Protected Forest would violate the constitutional rights of nature and are therefore prohibited in the forest. To enforce the ruling, the Court revoked the governmental authorisations granted to mining corporations to operate in Los Cedros. The Court also declared that the application of the constitutional rights of Nature is not limited to protected areas, such as Los Cedros, rather, as with any other constitutional right, it applies in the entire territory of the country. This case sets a precedent that is important not only for Ecuador but also for the international community to protect the integrity of forests and their biodiversity.

Another case of ‘personifying the environment’ can be found in the class action of the Civil Association for Environmental Justice and others v Province of Entre Ríos and others, filed in 2020 in the Argentinian Supreme Court against a government and municipality in Argentina for their alleged failure to protect environmentally sensitive wetlands. The plaintiffs brought the complaint with the aim of preserving the wetlands of the Paraná Delta, arguing that the Delta has its own rights.⁶⁶ The case was merged with Equística Defensa del Medio Ambiente v Provincia de Santa Fe y ots,⁶⁷ as both claim that this essential wetland ecosystem has the right to government measures for climate change mitigation and adaptation, due to the ecosystem services it provides. The Court in the latter case united recognition of the intrinsic value of biological diversity with consideration of the precautionary principle⁶⁸ and national jurisprudence regarding the principle of in dubio pro natura.⁶⁹ In order to safeguard the ecological integrity of the Paraná Delta, the Supreme Court, following the Climate Change Adaptation and Mitigation Law, ordered the establishment of an Environmental Emergency Committee to adopt effective precautionary measures to prevent and put out irregular fires in the area.

Both the precautionary and in dubio pro natura principles are also used by the Supreme Court of Pakistan, in the case of D. G. Khan Cement Company v Government of Punjab.⁷⁰ The Supreme Court of Pakistan upheld a decision by the Punjab provincial government prohibiting the construction of new or expanded cement plants in environmentally fragile areas. The decision emphasises the need to protect the rights of Nature itself: ‘[m]an and his environment each need to compromise for the better of both and this peaceful co-existence requires that the law treats environmental objects as holders of legal rights’. The decision also justifies the personification of the environment, saying ‘the environment needs to be protected in its own right. There is more to protecting nature than a human centred rights regime’.

Therefore, the Lahore Tribunal emphasised the obligation of courts to treat the environment as a subject of law, because of the intrinsic value of nature and its natural elements, and to protect and preserve natural resources, because of their importance in reducing the effects of climate change. As a result, the Supreme Court rejected the company’s challenges and upheld the government’s ruling that new or expanded cement plants could cause further depletion of groundwater and other harmful environmental impacts. The arguments were based on the government’s duty to uphold the precautionary principle in protecting the rights to life, sustainability, and dignity of the communities surrounding the project areas.

11.3.4 Protecting the Atmospheric Commons through the Public Trust and the Right to a Stable Climate

Following the global trend, human rights now play a central role in climate litigation. In fact, the cases described earlier in this chapter demonstrate how the ‘greening’ or ‘ecocentric approach’ to human rights and the collective consideration of the human right to a healthy environment offer a good starting point for rebuilding harmonious relationships between human beings and Nature.

As developed in Chapter 10, another emerging best practice is consideration of the atmosphere as a common good, as part of public trust.⁷¹ The public trust principle, which is well established in US case law, is the proposition that the sovereign holds certain natural resources in trust for the public.⁷² More than two dozen cases have been brought around the world based on ‘public trust’ arguments, each arguing that the state has a duty to protect public resources from harm.

This argument is closely linked to the anthropocentric idea that the fundamental right to life is inextricably tied to the right to a healthy environment, including a stable climate, as put forth in the ruling of Clean Air Council v United States.⁷³

Following an expansive interpretation of the traditional public trust doctrine, these lawsuits are potentially important in terms of emerging best judicial practices. Both characterise the government as a public trustee – that is, the manager of those natural resources – including the atmosphere, air, and water – that are subject to the public trust. Therefore, the government has a fiduciary duty to protect and preserve those vital natural resources in trust for the people and for future generations.⁷⁴ Under the public trust doctrine, the government has a high, solemn, and perpetual duty to protect these special commons and the public’s use of them from impairment, subordination, or alienation for private control. This trust establishes a legal relationship, just like a trust created with a bank as trustee, between the trustee, beneficiaries, and the commons in Nature. The public trust doctrine has connections derived from the due diligence principle or duty of care discussed in the Urgenda case.⁷⁵

As in the legal or judicial recognition of the rights of Nature, the public trust doctrine calls for respect for the beingness or personhood of Nature, and at the same time ensures a citizen’s right to bring an action to protect this personhood and the essential protected use of water or ecosystems. Therefore, if the government breaches or fails in its duty as trustee to protect the rights or beingness of Nature, citizens, as legal beneficiaries, have a right and standing to bring civil action against the government.

This doctrine is especially important because the protection of the atmosphere for the common good would result in the recognition and new constitutionalisation of the right to a stable climate, thus firmly establishing a government’s fundamental duty to maintain climate stability. The recognition of the right to a stable climate to protect Nature is found in the case of Institute of Amazonian Studies (IEA) v Brazil.⁷⁶ The lawsuit alleges that the federal government has failed to comply with Brazilian emissions and annual Amazon deforestation rate reduction targets set out in the National Law on Climate Change Policy and fundamental rights, and calls for recognition of the explicit fundamental right to a stable climate for present and future generations under Article 225 of the Brazilian Constitution.⁷⁷ In order to remedy this situation, the plaintiffs ask the government to reforest an area equivalent to what was deforested to fulfil the duty of the state to protect the Amazon Forest.⁷⁸ The case was transferred to the Amazonas Court, due to an alleged connection between this case and the case of the Federal Public Ministry against IBAMA, a case in which the Public Ministry asked the government to put in place monitoring bases in ten critical areas of the Amazon to combat deforestation, as set out in the PPCDAm.

Both cases concern illegal deforestation in the Amazon, which aggravates the climate crisis and is directly linked to violations of the fundamental rights of traditional peoples and Indigenous communities. It is therefore understood that the right to a stable climate can only be guaranteed by preserving the Amazon rainforest, which is essential for both human life and ecological balance,⁷⁹ with clear intergenerational and global implications justifying the recognition of the right to a stable climate.⁸⁰

After analysing these cases, judges see climate change, ecosystem degradation, and biodiversity loss as interdependent questions. Ecosystem degradation is caused by and exacerbates climate change, which is already one of the main drivers of biodiversity loss globally. Thus, the recognition of the right to a stable climate can play a key role in addressing the combined climate and biodiversity crises while contributing to accelerating transformative change towards Nature protection.

11.4 Replication of Judicial Best Practices from the Ecocentric Approach

As the previous sections demonstrate, constitutional and legislative advances in terms of ‘greening’ the law are in different stages across different jurisdictions. Despite distinct normative realities, it is possible to recognise common characteristics in judicial discussions to confront the climate crisis. Recognition of the intrinsic value and autonomous specific rights of ecosystems essential for the balance of climate and biodiversity is the first step, followed by the expansion of ‘personhood’ and the ‘personification of the environment’ to move away from a human-centred rights regime towards an approach that includes elements of Nature such as plants, animals, and rivers.

The attribution of legal rights to Nature follows two basic lines of reasoning. First, that the legal and moral foundations for human rights rely in part on the belief that rights emanate from the simple fact of human existence, which implies that the same inherent rights should also apply to the natural world. A second and more pragmatic argument claims that humanity’s very survival depends on healthy ecosystems and that protecting the rights of Nature is tantamount to protecting human rights and well-being. This last reason can be accommodated by both civil and common law systems. From this perspective, most cases present powerful examples of the increasing relevance of rights-based claims of environmental protection in the context of the climate emergency.

The cases discussed in this chapter are judicial responses to public interest litigation that require governments to take climate action to protect all natural life, including humans, from the worst impacts of climate change. While adopting ecocentric arguments, these court cases have had an impact on the protection of Nature.

Through mandates such as prevention, preservation, regeneration, and restoration, these cases provide the following elements of replicability, which can be modulated according to the greater or lesser proximity of judges and courts to the ecocentric interpretation of the legal framework (Nature-centred approach):

• Equating damage to Nature with damage to humans, which is a significant change from the way environmental law has traditionally protected Nature by limiting itself to regulating human impacts.

• Recognising the importance of ecosystems for climate change mitigation and adaptation, recognising the existing vulnerabilities and risks produced by the biodiversity lost.

• Safeguarding the human rights of present and future generations by requiring the protection of Nature as a life support. Although the protection of Nature may be a secondary consequence, Nature is central to guarantee human rights in the context of the climate emergency. The cases in Brazil could provide vital guidance to other courts interpreting the constitutional right to a healthy environment, including the right to a safe climate and the right to healthy ecosystems and biodiversity and in benefit of humans and non-humans.

• Recognising the personality and rights of Nature as having intrinsic value per se and recognising the eco-dependence of humans on Nature. A growing number of climate lawsuits related to ecosystem rights could set a precedent, even if their legal systems do not yet explicitly recognise those rights.

In particular, the use of substantive ‘eco-principles’ can help judges in different jurisdictions approach this reorientation of climate litigation from an ecocentric interpretation of the law. Principles such as precaution or in dubio pro natura play a fundamental role in the protection of the rights to life and sustainability, thus promoting a new ecocentric approach to climate litigation.

In this sense, courts in different countries are beginning to maintain a jurisprudential dialogue, applying the ecocentric perspective through these principles of law to act for the conservation of biodiversity by opposing extractive projects that contribute to exacerbating climate change through the destruction of natural ecosystems.

The serious risks posed by climate change and the essential importance of Nature in addressing climate impacts call for new legal perspectives that protect Nature to protect life, and that means overturning the overwhelming legal protection of the human interest that currently exists in law.

Achieving this reinterpretation of the law within the climate litigation can also benefit the protection of Nature in different degrees, through judges’ recognition of:

• An ‘ecocentric punitive and restorative approach of law’: by shifting environmental protection out of the exclusive domain of public law and creating access to the remedies available in private law, such as compensation for damages, mandatory precautionary restoration measures, among others, promoting the so-called ‘punitive ecology’ and ‘restorative ecology’.⁸¹

• An ‘ecocentric utilitarianism of Nature approach of law’: A preventive approach, judicially recognising the rights of Nature in order to protect human rights, including the human right to a healthy environment. At the same time, human rights-based approaches provide a powerful framework of analysis and basis for recognising the rights of Nature, granting protection beyond the realm of public law and empowering Nature protectors to proactively seek private legal solutions.

• A ‘pure ecocentric approach of law’: by recognising the interdependence and interconnectedness of Nature, asserting the intrinsic value of Nature and the right to be protected from climate change and degradation. This could imply granting ‘personality’, legally recognising Nature as a living being, equal to humans. Likewise, it supposes creating a fiduciary duty of all interested parties starting with States, companies, and society in general.

As a result, these cases have the potential to influence both environmental law and human rights law on a much broader scale than the jurisdiction of the courts. In particular, the legal pluralism that characterises these numerous cultural contexts produces greater interpretive flexibility in the mindset of judges, especially in relation to environmental law. Therefore, the replicability of the ecocentric interpretation of law to other jurisdictions depends not on the existence of a legal framework that expressly recognises the rights of Nature, nor on the influence of Indigenous peoples, but on recognising the importance of Nature in responding to the climate emergency.

11.5 Conclusions: From Climate Litigation to Ecological Justice

As global warming accelerates, ecosystems are being pushed towards collapse, bringing the human right to a healthy environment and other fundamental rights down with them. The anthropocentric conception of environmental protection is not enough to combat the effects of climate change.

Climate litigation worldwide raises awareness of the importance of Nature and the development of more Nature-centred solutions as key to both protecting Nature and increasing societal resistance to climate change. This ‘ecocentric’ approach to climate litigation has developed mainly in the Global South, where most of the world’s biodiversity is concentrated. Climate change, however, is a universal concern, and therefore the experience from the Global South can contribute to Global North climate litigation and strengthen the ecocentric perspective on rights.

Some courts have made Nature legally visible by reinterpreting and expanding the meaning of certain norms and legal institutions historically used for different purposes. Even so, recognition of the rights of ecosystems remains rare because recognition of the rights of Nature was seen as collateral to the climate litigation and because the ecocentric approach is still not widely used, compared to the traditional rule of law.

Nevertheless, recognition of the importance of an ecocentric perspective in climate litigation has been steadily growing, not only because it is a solution that can help save us from the climate emergency but also because of increasing respect for the existence of non-human life forms and greater understanding of their vulnerability to the effects of anthropogenic climate change. This growing recognition is important because, in many cases, the changing climate is not the centre of legal demands but is instead integrated into litigation as an issue that aggravates pre-existing environmental and socioeconomic problems. The treatment of climate change as merely an add-on threatens the realisation of fundamental rights and the preservation of carbon sinks.

Recognition of the rights of Nature allows people to view Nature as a being or life form connected to themselves and worthy of protection, thereby strengthening the relationship between humans and Nature. When this happens, people are more likely to fight to protect that relationship when Nature is harmed or threatened, and they will expect the law to recognise it as the status quo of a viable and sustainable being. Courts will then be more receptive and understanding, and they will therefore be more likely to articulate new interpretations of law and pass new laws and constitutional provisions that ensure the protection of Nature. Perhaps equally important, if not more so, people will become more likely to see Nature, ontologically speaking, as beingness and a concern of all humankind, surpassing the idea of Nature as exclusively a question of the culture and spirituality of Indigenous peoples. In this way, people can bring civil actions to insist that those new rights of Nature be protected, and the burden shifts to those who threaten these rights of Nature to prove that there is no likely harm to its elements.

The main arguments, which allow the ecocentric approach of global warming in climate litigation, are focused on the protection of essential ecosystems in order to maintain balance within the climate system. The approach to the climate crisis based on intergenerational and interspecies equity and solidarity allows the progressive recognition of the legal personality and rights of ecosystems threatened by climate change. While all cases bring a different legal argumentation depending on the jurisdictional level, there is a common element between international, national, and local norms of how the climate, human rights, and children can only benefit from the application of clear ecological standards, thus allowing for greater ambition on climate and the protection of the ecological integrity of ecosystems.

In sum, the ecocentric interpretation of law is one of the promising emerging trends in climate litigation in that it centres ecosystems and other elements of Nature and considers the impacts and root causes of climate change, as well as life projects and ecological functions. The ‘ecocentric climate litigation’ reaches the causes and consequences of the climate emergency, unlike other cases of climate litigation. That is, responsibility towards Nature, offering prevention, repair, and accountability to address climate change. All of these allow a reinterpretation of the legal framework without the need to introduce a reform recognising the legal personhood of Nature and its inherent value and rights, while still protecting human rights and climate objectives. In this way, climate litigation can serve as a critical means of fostering ecological justice.