4.1 Introduction
United States (US) Supreme Court Justice Antonin Scalia famously distilled the essence of standing to a four-word inquiry: ‘What’s it to you?’Footnote 1 The law of standing provides standards for evaluating who is a proper party to bring a case to the courts. Standing is a gate-keeping mechanism that seeks to avoid opening the floodgates of litigation and subjecting the courts to frivolous claims. So, in asking, ‘What’s it to you?’ the court is seeking to confirm that only proper parties are permitted to bring claims to help optimise the use of valuable and limited judicial resources.
Standing is jurisdiction-specific. In some jurisdictions, such as the US, a party will not have standing without meeting the requirements of a three-part test. The constitutional origin for this test is the ‘cases or controversies’ language in Article III, Section 2 of the US Constitution. The three-part test evaluates whether (1) the plaintiff has sustained an ‘actual or imminent’ injury that is ‘concrete and particularized’; (2) the plaintiff’s injury is ‘fairly traceable’ to the action or inaction of the defendant; and (3) a favourable decision by the court is likely to redress the plaintiff’s claim.Footnote 2 Unlike the restrictive standing requirements in US and other common law jurisdictions around the world, ‘universal standing’ is the norm in many other jurisdictions, which permits all interested parties to file claims challenging laws that are the alleged sources of their concerns. In some jurisdictions, environmental claims have more relaxed standing requirements than other types of civil claims. There are many other procedural grounds on which the claims may be dismissed, and many ways in which the claims may fail to meet their burdens of proof at trial. Therefore, more permissive standing in climate litigation is important to offer opportunities for meritorious claims to proceed in the courts. The courts are an indispensable last resort in climate litigation in jurisdictions that are plagued by inadequate or non-existent legislative or executive action on climate change matters.
The Urgenda case is a positive step forward in addressing standing in climate litigation.Footnote 3 The standing barrier has precluded many plaintiffs from seeking accountability in the courts from governmental or private sector actors that contribute to climate change.Footnote 4 Yet, in Urgenda, the Court concluded that the Urgenda Foundation had standing to file a collective action claim under the Dutch Civil Code. The Supreme Court noted that the interests of residents of the Netherlands in relation to climate change are sufficiently identical and can be ‘bundled’ to secure protection in a collective action suit. Moreover, the State had not disputed standing in that the claim concerned the protection of the interests of the inhabitants of the Netherlands from dangerous climate change. The State did object to Urgenda’s asserted standing on behalf of people outside the Netherlands and on behalf of future generations. The Dutch government and the Court’s willingness to allow plaintiffs to have standing to bring meritorious climate litigation claims in the courts is a standard towards which the world should aspire in future climate litigation. Ideally, the standard should also include standing on behalf of future generations in climate litigation claims.
Standing is a significant and widely litigated issue in climate litigation around the world and that trend will continue, especially in common law jurisdictions, as the number of these cases continues to rise dramatically.Footnote 5 Strict standing barriers need to be reduced in many jurisdictions around the world to promote broader access to the courts in climate litigation because of the urgency of the climate emergency and the difficulty of asserting individualised harm in climate litigation. There are two primary obstacles for plaintiffs seeking to secure standing in climate litigation. Under US law, one obstacle is the principle that ‘injury to all is injury to none’,Footnote 6 which means that because of the widespread nature of climate change impacts, it is difficult for plaintiffs to allege that the harm that they suffer is sufficiently ‘concrete and particularized’Footnote 7 to satisfy the injury element of standing. Another obstacle that is common to plaintiffs in many jurisdictions is causation – the challenge to attribute climate change impacts to the action or inaction of government and private sector defendants. In recent years, climate attribution science has advanced considerably and will help diminish this obstacle,Footnote 8 though it remains a challenge for many climate litigation plaintiffs.
This chapter reviews cases in several jurisdictions to reveal how courts have addressed standing in climate litigation to date. Section 2 addresses case studies of standing in climate litigation in the US, New Zealand, the European Union (EU), EU Member States, the Philippines, India, and Australia. It reveals how standing has been a barrier to climate litigation in the US, New Zealand, the EU, and the Philippines, whereas standing barriers either do not exist or exist to a lesser degree in several European Member States, India, and Australia. Section 3 identifies emerging best practices to offer recommendations on how future climate litigation claims may avoid dismissal on standing grounds.
4.2 Case Law Developments – State of Affairs
This section describes significant climate litigation cases in several jurisdictions to highlight the range of approaches that courts and tribunals have taken in considering standing in climate litigation. The review of these cases reveals a gap of inconsistent treatment of parties’ ability to seek redress for climate litigation claims. Given the urgency of the climate crisis, and because it is unlikely that there will be frivolous cases seeking to raise ambition in addressing climate change or dealing with its consequences, a more liberalised standard for standing in climate litigation is needed to the maximum extent permissible within the constraints of domestic jurisprudence on standing.
There is a broad spectrum of approaches to standing across jurisdictions. The US represents the most restrictive approach to standing, which requires the constitutional minimum of injury, causation, and redressability to be met for a party to be eligible to proceed with a claim. The US approach to standing is arguably the most stringent, formal, and complex in the world. At the other end of the spectrum are jurisdictions like the European Member States discussed in this section that have adopted a liberal approach in granting standing to climate litigation plaintiffs. A middle category in this range of approaches to standing is reflected in jurisdictions like Australia that allow a lower standing threshold when cases are filed under certain statutes as compared to the higher standing threshold for common law claims. The diversity of approaches along this spectrum is explored in this section.
4.2.1 United States
The approach to standing by US courts is the most restrictive, and it therefore falls at one end of the spectrum. Climate litigation in the US has proceeded against federal and state governmental entities and private sector companies. Climate litigation in the US traces its origins to the landmark case Massachusetts v EPA.Footnote 9 In this case, the US Supreme Court concluded that the state of Massachusetts had standing to seek to compel the Environmental Protection Agency (EPA) to regulate carbon dioxide emissions from new motor vehicles, even when the agency had decided not to do so in the exercise of its administrative discretion. The state of Massachusetts brought its claim on behalf of its citizens to seek a remedy for the loss of coastal land in the state due to sea level rise, which is caused by global climate change. This ‘special solicitude’ of the state to bring claims on behalf of its citizens was a significant component of the Court’s analysis in granting standing in the case.Footnote 10
The Court concluded that this alleged injury was both ‘actual’ and ‘imminent’ because it was occurring and was likely to continue to occur. It was also ‘concrete and particularized’ and not abstract or conjectural because it involved scientifically demonstrable loss of land in the state. The second element, causation, was easily established because the defendant, the EPA, conceded it. The final element, redressability, also was satisfied. The Court concluded that although EPA regulations addressing carbon dioxide emissions from new motor vehicles would not stop the loss of coastal land in Massachusetts from sea level rise, it would help slow the rate of loss of that land ever so slightly, which the Court deemed sufficient to meet the redressability standard.Footnote 11
Since Massachusetts v EPA, climate litigation plaintiffs in the US have been plagued by standing barriers in cases against both governmental and private sector defendants. For example, in Native Village of Kivalina v ExxonMobil Corp., the plaintiffs were a traditional Inupiat village of approximately 400 residents living on a remote Arctic strip of land severely compromised by sea level rise and coastal erosion.Footnote 12 The community filed a suit against twenty-three of the leading multinational oil and gas companies, seeking damages for their contribution to global climate change, which, in turn, accelerated the demise of this Native village. The US Circuit Court of Appeals for the Ninth Circuit affirmed the District Court’s dismissal of the case, holding that the plaintiffs lacked standing to bring the claim and that the Court lacked jurisdiction to hear the case due to the political question doctrine.Footnote 13 The Court concluded that the plaintiffs failed on the causation element of standing because they could not show plausible traceability from the defendants’ actions to their injuries.Footnote 14 The Ninth Circuit did not apply Massachusetts v EPA to recognise the unique capacity of the federally recognised Native Village as a quasi-sovereign entity that could benefit from the ‘special solicitude’ reasoning. The Court also highlighted concerns around causation (as related to standing), although perhaps that would not have been the case if the village had the benefit of the more advanced climate attribution science that supports climate litigation today.Footnote 15
Climate litigation against the US federal government in Juliana v United StatesFootnote 16 has also attracted international attention. The youth plaintiffs’ litigation theory, known as ‘atmospheric trust litigation’, asserted an expansive reading of the common law public trust doctrine (to include federal government stewardship of the atmosphere) and the US Constitution (to recognise a right to a stable climate under the Due Process Clause of the Fourteenth Amendment). The plaintiffs in Juliana sought a comprehensive injunctive remedy in the case – a climate recovery plan – based on these ambitious common law and constitutional law theories. In denying the federal government’s motion to dismiss, Judge Ann Aiken’s landmark 2016 decision determined that the atmospheric trust dimensions of the youth plaintiffs’ arguments, and the rights-based arguments under the US Constitution, deserved to proceed to trial.Footnote 17
The Ninth Circuit ultimately dismissed the case in January 2020. Although the Court concluded that the plaintiffs met the injury and causation elements of standing, it held that the plaintiffs failed to meet the redressability element. The Court determined that the youth plaintiffs’ requested remedy to order the federal government to adopt ‘a comprehensive scheme to decrease fossil fuel emissions and combat climate change’ would exceed a federal court’s remedial authority and thus failed to meet the redressability element of standing.Footnote 18
4.2.2 New Zealand
New Zealand represents a slightly less restrictive approach to standing but one that still creates a barrier for bringing a climate case to trial. In New Zealand, climate litigation cases have only discussed standing in the context of public nuisance claims, which require a ‘special interest’ similar to Australia’s special interest requirement (discussed later): (1) the harm must be greater than that to the general public, and (2) the harm must also be particular, direct, and substantial.Footnote 19 The case of Smith v Fonterra Co-Operative Group Ltd illustrates this approach.Footnote 20
Smith, an Indigenous plaintiff who is the climate change spokesman for the Iwi Chairs’ Forum, sued several large New Zealand-based companies over their greenhouse gas (GHG) emissions. He asserted three tort-based causes of action – (1) public nuisance; (2) negligence; and (3) breach of an inchoate duty – and sought an injunction to require each defendant to reach zero net emissions by 2030. The plaintiff claimed to have interests in lands and other resources that have customary, cultural, historical, nutritional, and spiritual significance to him. In his public nuisance claim, he asserted that anthropogenic climate change will cause sea levels to rise, which will damage his family’s land and interfere with public health, safety, comfort, convenience, and peace.
Under New Zealand law, the Attorney General has standing to sue for an injunction to restrain a public nuisance. The Attorney General can act personally or by way of a relator action in which they act on relation of a private individual or local authority. An individual, meanwhile, can only bring a public nuisance action if they suffer some special damage that is appreciably more serious than that of the general public.Footnote 21 Special damage is considered particular, direct, and substantial, and more than merely consequential.Footnote 22 In this case, Smith chose not to invite the Attorney General to sue on his behalf and instead sued in his own right.
The court of first instance held that Smith’s harm was merely consequential and could not be directly traced to the defendants’ actions due to the long chain of traceability. The Court also held that Smith’s alleged damage was neither particular nor direct to him. Rather, it was a manifestation of the effects of climate change not only on him but also on very many others.Footnote 23
On appeal, Smith alleged that the special damage rule did not account for his interest in the land, as well as the tikanga Māori and his kaitiaki responsibilities, which he asserted were sufficient to set him apart from the general public.Footnote 24 In reevaluating Smith’s claims, the Court addressed the special damage rule, noting that there is no universally accepted formulation. Typically, there are two approaches. The first approach is that the ‘harm suffered by the individual must not only be appreciably different in degree but also different in kind from that shared by the general public’.Footnote 25 The second approach is that ‘all that matters is for the injury and inconvenience to be appreciably “more substantial, more direct and immediate” than that suffered by the general public without necessarily differing in its nature’.Footnote 26
Even when applying the second, more liberal approach to the special damage rule, the Court concluded that Smith lacked standing because he had not suffered any special damage greater than that of other members of the general public, given that many places throughout New Zealand are ‘sites of historical, nutritional, spiritual and cultural significance that are at risk or under threat’.Footnote 27 Smith asked the court to reconsider the special damages rule in its entirety, but the Court reiterated the justifications for the rule, including the prevention of a multiplicity of actions and the premise that the Attorney General is best suited to bring public nuisance claims in accordance with its constitutional role.Footnote 28 The Court ultimately did not decide whether the special damage rule should be abolished. The Court also rejected the ‘nuisance due to many’ argument, wherein defendants who are even partially responsible for damages are held legally accountable based on the extent of their contribution. In rejecting the argument, the Court observed that those principles apply only in cases where there is a ‘finite number of known contributors to the harm, all of whom were before the Court’.Footnote 29
4.2.3 European Union
While the European Court of Justice (ECJ) approach to standing is very specific, it reflects the restrictive approach adopted by the New Zealand courts – and has been subject to extensive criticism. The ECJ recently issued decisions in two significant climate cases that include important standing analysis: Carvalho v European Parliament (‘The People’s Climate Case’)Footnote 30 and Sabo v European Parliament.Footnote 31 The former challenged legislation that sets the EU’s overall climate change targets, whereas the latter challenged legislation that permits a specific measure – reliance on biomass – to meet those targets.
The Treaty on the Functioning of the European Union (TFEU) organises the EU and governs the laws of locus standi that citizens of Member States have before the ECJ.Footnote 32 TFEU Article 263(4) establishes what constitutes a ‘case or controversy’ before the ECJ in stating that ‘any natural or legal person may … institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’.Footnote 33
The ECJ is tasked with interpreting these standing requirements, and the definition of ‘direct’ and ‘individual’ concern has been developed in ECJ case law. The Plaumann test is the standard applied to evaluate the applicants’ eligibility to challenge the laws at issue. In Plaumann, the ECJ set a high bar to establish individual concern for natural or legal persons. The contested act must affect them ‘by reason of certain attributes that are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the addressee’.Footnote 34 In seeking to meet the Plaumann test, the applicants in the two aforementioned climate cases argued that: (1) any violation of human rights is by its very nature unique or, in the alternative, (2) the test should be altered to take account of the reality of climate change.
In Sabo, a group of individuals and civil society organisations from Estonia, France, Ireland, Romania, Slovakia, and the US challenged a piece of EU legislation that allows the burning of forest biomass, which is considered a renewable energy source under the law. The applicants came from areas that have been particularly affected by logging.
The applicants sought annulment of EU legislation that was allegedly in breach of Article 191 of TFEU and the EU Charter. They argued that the accelerated forest loss and significant increases in forest logging and, consequently, in greenhouse gas emissions violated their right to respect for private and family life, right to education, rights of the child, right to property, health care, freedom to manifest religion, and right to respect for religious diversity. Even though some applicants were foresters or lived in forest areas, the court dismissed the plaintiffs’ claims at the admissibility stage because they failed to establish standing.
In their appeal, the plaintiffs argued that the ‘individual concern’ requirement should be interpreted in view of the reality of the global climate crisis and that, in cases alleging human rights violations, direct access to the ECJ must be ensured, as long as there are no alternatives. The Court rejected this argument, reasoning that the claim that the acts at issue infringed fundamental rights was not sufficient to establish that the plaintiffs’ claims were admissible without rendering the requirements of TFEU Article 263(4) meaningless.Footnote 35 It relied on case law in which strict interpretation of Article 263(4) is consistent with the EU Charter, and with the right to an effective remedy under arts 6 and 13 of the European Convention on Human Rights (ECHR). The Court upheld the Plaumann test and continued to bar natural or legal persons from contesting EU environmental law.
In The People’s Climate Case, ten families from Portugal, Germany, France, Italy, Romania, Kenya, Fiji, and the Saami Youth Association, Saminourra, filed a lawsuit against the European Council. The plaintiffs were children and their parents who worked in agriculture and tourism in the EU and abroad and who were increasingly affected by climate change impacts. They argued that three pieces of legislation designed to enable the EU to meet an overall emissions reduction target of 40 per cent compared with 1990 levels were insufficient to protect their lives, livelihoods, and human rights from the impacts of climate change.
The ECJ dismissed the case, holding that the plaintiffs’ claims were inadmissible. Given that the legislative acts at issue were not addressed to the plaintiffs, they had to prove that those acts were of direct and individual concern to them. They argued that they suffered from droughts, flooding, heat waves, sea level rise, and the disappearance of cold seasons. According to settled case law, natural or legal persons satisfy the condition of individual concern only when the plaintiffs are affected in a way that is ‘peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually’.Footnote 36
The ECJ held that general claims will always concern some fundamental right of some particular applicant. The Court was concerned that allowing such claims to proceed would confer standing to almost any plaintiff. For an annulment action to be declared admissible, it is therefore not sufficient to simply claim that a legislative act infringes fundamental rights. By invoking their fundamental rights, the applicants tried to infer an individual concern from the mere infringement of those rights, on the ground that the effects of climate change are unique to and different for each individual. The Court disagreed with this approach, stating that the legislative acts at issue did not affect the applicants by reason of attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons.
4.2.4 European Union Member States
4.2.4.1 Netherlands
The Netherlands confers standing through a unique civil code provision that grants non-governmental organisations (NGOs) access to its courts.Footnote 37 In Urgenda, the District Court (2015, first instance) held that the Urgenda Foundation met all of the standing requirements to bring the claim, and that it could: a) act on its own behalf, representing the interests of both current and future generations of Dutch citizens; and b) partially rely on the impact of Dutch emissions abroad to establish its own standing, acknowledging the possibility for the Dutch NGO to act on behalf of the interests of persons not resident in the Netherlands: ‘Urgenda can partially base its claims on the fact that the Dutch emissions also have consequences for persons outside the Dutch national borders, since these claims are directed at such emissions.’Footnote 38 However, the Court did not directly address this point. Finding that Urgenda already established its standing on behalf of Dutch citizens, it concluded that ‘no decision needs to be made on whether Urgenda’s reduction claim can als[sic] be successful in so far as it also promotes the rights and interests of current and future generations from other countries’.Footnote 39 The District Court denied the standing of the individual claimants, on the basis that they did not have sufficient interests besides Urgenda’s interest.
The Court of Appeal confirmed the lower court’s decision that the Urgenda Foundation had established its own standing, acting on behalf of the current generation of Dutch nationals and individuals subject to the State’s jurisdiction.Footnote 40 This was because, in the Court’s view, ‘it is without a doubt plausible that the current generation of Dutch nationals, in particular but not limited to the younger individuals in this group, will have to deal with the adverse effects of climate change in their lifetime if global emissions of greenhouse gases are not adequately reduced’.Footnote 41
4.2.4.2 Germany
The Neubauer case concerned a challenge by a group of German youth of the Federal Climate Protection Act. The claimants argued that the target in the Act to reduce GHG emissions by 55 per cent by 2030 from 1990 levels was insufficient to limit global warming to 1.5°C compared to pre-industrial levels, in line with the Paris Agreement – and therefore violated their human rights.Footnote 42
The claimants included eight German individuals, including some minors who were residents of Germany. They were joined by fifteen individual claimants living in Bangladesh and Nepal. The Constitutional Court recognised the standing of the foreign plaintiffs, finding: ‘The complainants living in Bangladesh and Nepal also have standing in this respect because it cannot be ruled out from the outset that the fundamental rights of the Basic Law also oblige the German state to protect them against the impacts of global climate change.’Footnote 43 However, while the Constitutional Court found a breach of fundamental rights in relation to the resident plaintiffs, the Court established that there could not be a breach of fundamental rights in the case of the non-residents. In the Court’s view, the reduction target of 55 per cent was not itself unconstitutional. However, the Court found that (1) Germany’s emissions must stay within ‘its’ carbon budget; and that (2) its carbon budget would be almost exhausted by 2030 on the basis of the 55 per cent target. The Court therefore found that Germany would need to take very drastic reduction measures after 2030 to stay within its carbon budget, and that these measures would necessarily entail severe restrictions on the fundamental freedoms of the youth plaintiffs (who are residents of Germany). On this basis, the Court established that certain provisions of the Act were incompatible with fundamental freedoms, as they failed to adequately specify emission reductions beyond 2030.
It was therefore because the 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) that the Court was able to conclude that the complainants living in Bangladesh and Nepal would not be affected in their own freedom (as they would not be subject to such measures).Footnote 44 Accordingly, the Court concluded that ‘no violation of a duty of protection arising from fundamental rights is ascertainable vis-à-vis the complainants who live in Bangladesh and Nepal’.Footnote 45 The Court also noted that the task of fulfilling the duties of protection arising from fundamental rights involves a combination of both climate mitigation and adaptation measures. The judges concluded that Germany would not be able to provide this level of protection through adaptation abroad.Footnote 46
4.2.4.3 Belgium
Under Belgian law, there is a requirement that plaintiffs have a personal and direct interest in the claim. In the case of Klimaatzaak – which was modelled on the Urgenda case – the District Court held (which was confirmed by the Court of Appeal) that both the individual plaintiffs and the NGO satisfied this requirement:
… the diplomatic consensus based on the most authoritative climate science leaves no room for doubt that a real threat of dangerous climate change exists. This threat poses a serious risk to current and future generations living in Belgium and elsewhere that their daily lives will be profoundly disrupted. In this case, the plaintiffs intend to hold the Belgian public authorities partly responsible for the present and future adverse consequences of climate change on their daily lives. In so doing, each of them has a direct and personal interest in the liability action they have brought.Footnote 47
The District Court and Court of Appeal also recognised the standing of the NGO Klimaatzaak to bring the claim, which included rights-based arguments, noting that ‘environmental organisations are given a privileged status by the Aarhus Convention’.Footnote 48
4.2.4.4 France
A court in France issued a decision that also confirmed that Urgenda-like analysis on standing in climate litigation is possible at the national level in European Member States. The Conseil d’Etat, France’s highest administrative court, delivered a powerful decision in Commune de Grande Synthe I regarding France’s obligation to reduce its greenhouse gas emissions. The decision could inspire other courts across Europe to review more climate litigation cases.
The Court determined that an individual plaintiff’s claim, which was filed by the Mayor of the municipality in this case, was inadmissible despite his current residence in an area experiencing climate change impacts. The Conseil d’Etat concluded, however, that the municipality of Grande Synthe had the right to challenge the government’s tacit refusal, as its standing resulted from the impact of its ‘direct and certain’ exposure to climate change, and more particularly, sea level rise. The Conseil d’Etat also granted intervention requests in this case from the Paris and Grenoble municipalities due to their ‘very strong’ exposure to climate-related risks.
Commune de Grande Synthe I is a landmark precedent for climate litigation in France and follows the European pathway that was opened in Urgenda. The Conseil d’Etat’s ruling may convince the ECJ to take a less restrictive position on standing in climate litigation. A recent challenge by Paris, Brussels, and Madrid against a Commission regulation on nitrogen oxide emissions has been recently admitted by the General Court and is on appeal before the ECJ as of this writing. This case may be the ECJ’s opportunity to adopt reasoning similar to the Conseil d’Etat’s in Commune de Grande Synthe I.Footnote 49
4.2.5 Philippines
The Philippines is widely regarded for its groundbreaking public interest environmental litigation. Generally speaking, the Philippines falls on the more liberal end of the standing ‘spectrum’.
Championed by the noted lawyer and environmentalist Antonio Oposa, this trendsetting jurisprudence traces its roots to the relaxed standing requirements established in the Minors Oposa case in 1993.Footnote 50 This case was filed as a taxpayers’ class action to compel the Secretary of the Department of Natural Resources to cancel existing timber licensing agreements (TLAs) and refrain from approving new applications. The plaintiffs included Oposa, his children, other children and their parents, and unnamed children of the future. They alleged that all citizens of the Philippines are ‘entitled to the full benefit, use and enjoyment of the country’s virgin tropical forests’Footnote 51 and that they enjoy a constitutional right to a healthful and balanced ecology under Section 16, Article II of the Philippines Constitution.Footnote 52 The plaintiffs asserted that continued authorisation of TLA holders to deforest the Philippines would cause irreparable injury to the plaintiffs, especially the minors and their successors who may never see, benefit from, and enjoy the country’s virgin tropical forests.Footnote 53
The Supreme Court of the Philippines concluded that the plaintiffs had standing to bring the class action. It determined that ‘[t]he subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it becomes impracticable, if not totally impossible, to bring all of them before the court’.Footnote 54 The Supreme Court also concluded that the parents, on behalf of the children, correctly asserted that the children represented their generation as well as generations yet unborn.Footnote 55
In the wake of the landmark decision in Minors Oposa, courts in the Philippines have issued several decisions that have been highly protective of environmental resources on behalf of current and future generations. Notwithstanding this leadership in the Philippines court system on public interest environmental litigation, plaintiffs in climate litigation in the Philippines have encountered standing obstacles in recent decisions.
In Segovia v Climate Change Commission,Footnote 56 for example, the plaintiffs sought issuance of writs of kalikasan and continuing mandamus. The writ of kalikasan allows persons filing to do so on behalf of inhabitants prejudiced by alleged environmental damage, whereas mandamus is only available to persons directly aggrieved by the unlawful act or omission.
The plaintiffs represented multiple classes of people, including the car-less, the children of the Philippines, the children of the future, and car owners who would rather not have cars if public transportation were ‘safe, convenient, accessible, or reliable’. The plaintiffs sought to compel the implementation of several environmental laws and an administrative order known as the ‘Road Sharing Principle’, which includes a provision calling for the reformation of transportation and collective favouritism of non-motorised locomotion. The plaintiffs alleged multiple violations including violation of the atmospheric trust provided by the Constitution and failure to implement the Road Sharing Principle mandated by EO 774 and the Climate Change Act. Although the government argued that the plaintiffs violated the hierarchy of courts when they filed their complaint, the Court held that kalikasan is available to persons whose life, health, or property are at risk and allows for circumvention of the typical hierarchy requirements. Therefore, the Court had jurisdiction over the case, and had to determine if the standing requirements were met.
The Court ultimately concluded that the plaintiffs lacked standing on the writ of kalikasan because their allegations amounted to nothing more than ‘repeated invocation of the constitutional right to health and to a balanced and healthful ecology’ and failed to establish ‘a causal link or reasonable connection to the actual or threatened violation of the constitutional right to a balanced and healthful ecology of the magnitude … required of petitions of this nature’.Footnote 57 The Court also dismissed the petition for a writ of mandamus on standing grounds because the plaintiffs failed to prove direct or personal injury.
4.2.6 India
Other jurisdictions in the Global South take a similarly liberal approach to standing. India, for instance, like the Philippines, has a rich history of groundbreaking public interest environmental litigation, which is just starting to serve as a foundation for climate litigation claims in the country. The courts in India analyse standing for public interest litigation with a different lens than traditional private litigation claims. The landmark case on this point, SP Gupta v Union of India,Footnote 58 contains famous language justifying the reasoning for adopting a lower threshold for standing in public interest cases:
This question is of immense importance in a country like India where access to justice being restricted by social and economic constraints, it is necessary to democratise judicial remedies, remove technical barriers against easy accessibility to Justice and promote public interest litigation so that the large masses of people belonging to the deprived and exploited sections of humanity may be able to realise and enjoy the socio-economic rights granted to them and these rights may become meaningful for them instead of remaining mere empty hopes.Footnote 59
Because of this relaxed standard for standing in public interest litigation, plaintiffs in climate cases in India have found particular success with constitutional arguments alleging the right to a clean and healthy environment.Footnote 60
4.2.7 Australia
Australia’s standing jurisprudence makes it a favourable jurisdiction for climate litigation that fits somewhere between the restrictive and liberal jurisdictions discussed so far. Unlike the US where Article III standing requirements (injury, causation, and redressability) always apply to plaintiffs, Australian courts apply narrower common law requirements and broader ‘open standing’ requirements, and their application depends on what statute is at issue. Litigants in Australia enjoy a lower standing threshold when cases are filed under certain statutes as compared to the higher standing threshold for common law claims.
Two statutes that enable lower standing thresholds in Australia are the Environment Protection Act of 1970 (EP Act) and the Environmental Planning and Assessment Act (EPA Act). To secure standing under these statutes, plaintiffs must demonstrate only that their ‘interests are affected by the decision’. These ‘interests’ can include intellectual, emotional, or aesthetic concerns.
By contrast, common law standing (which is controlling in the absence of any relevant statute) in Australia requires that the plaintiff demonstrate a ‘special’ interest by offering proof of some advantage or disadvantage that the plaintiff will incur as a result of the action. The special interest must be more than an intellectual or aesthetic concern and must set the plaintiff apart from other members of the general public.
Two climate cases in Australia effectively illustrate the lower standing thresholds under the aforementioned statutes: Dual Gas Pty Ltd and Ors v Environment Protection AuthorityFootnote 61 and Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd.Footnote 62 In Dual Gas, Australia’s EPA issued a work approval for a power station development, to which three NGOs and an individual, Martin Shield, objected. The tribunal held that three of the four plaintiffs, including Shield, had standing.Footnote 63 It evaluated the plaintiffs’ standing pursuant to a broader definition set forth in the EP Act and the Victorian Courts and Tribunals Act (VCAT Act). Section 33B (1) of the EP Act confers standing to any person whose ‘interests are affected by the decision’ to approve or deny a work proposal. The VCAT Act defines ‘interest’ as an interest of any kind, not limited to ‘proprietary, economic, or financial’ and further allows a person to apply to the tribunal whether their interest is ‘directly or indirectly affected by the decision and whether or not any other person’s interests are also affected by the decision’.Footnote 64
The Tribunal considered three factors to determine if each of the plaintiffs had standing: (1) the nature of the particular project proposal under consideration; (2) the materiality of the project’s potential environmental impact; and (3) the involvement of the plaintiff in the project approval process. The power station’s environmental impact was global in nature as it would increase Victoria’s emission profile by 2.9 per cent by emitting 4.2 million tons of GHGs per year.
Two of the plaintiffs, Environment Victoria (EV) and Shield, were heavily involved in the Dual Gas approval process, while a third plaintiff, Doctors for the Environment Australia (DEA), consisted of members who lived and worked in the Latrobe Valley and would be directly affected by the power station’s presence. The Tribunal also considered the government’s recognition of EV and its wide community constituency, along with Shield’s scientific expertise and the DEA’s participation in international climate change matters through its parent organisation, in its determination of the plaintiffs’ interest in the case. On the other hand, the fourth plaintiff, Locals into Victoria’s Environment (LIVE), submitted an affidavit that referenced only the author’s personal feelings towards the project. The Tribunal held that LIVE’s consistent involvement in opposition to brown coal in general was not enough of an interest to establish standing for this particular case.
The Tribunal provided extensive support for its conclusions. It first noted that the person seeking to establish standing must demonstrate a material connection with the subject matter of the decision under review, that is, a genuine interest. This may arise from a genuinely held and articulated intellectual or aesthetic concern in the particular subject matter of the decision, as opposed to a broader environmental concern generally.Footnote 65 Standing under the VCAT Act is wide but not unlimited. Some meaning must be attached to the words ‘a person whose interests are affected’. Despite the apparent breadth of s 5 of the VCAT Act, Parliament must have intended that rights of review do not accrue to any person.Footnote 66 It is necessary to consider the context of the relevant enabling Act. This requires consideration of the ‘subject, scope and purposes’ of the legislation under which the decision in question was made, and the nature of the reviewable decision itself.Footnote 67
In Haughton, pursuant to the EPA Act, the Minister declared two coal-fired power station project proposals, Bayswater and Mt. Piper, to be ‘critical infrastructure projects’ necessary to meet the electricity needs in New South Wales.Footnote 68 Plaintiff Haughton challenged the declaration and the plan approvals on the grounds that: (1) the Minister erroneously approved the power stations on the basis that they were critical infrastructure projects; (2) the Minister had not fully considered the principles of ecologically sustainable development; and (3) the Minister had not considered the impact of the projects on climate change, which was required of him based on his duty to protect the public interest.
The Court granted standing to Haughton pursuant to the ‘open standing’ requirements of s 123 of the EPA Act, which recognises the right of any person to bring proceedings whether or not any right of that person has been infringed.Footnote 69 The Court also determined that even if it erred in granting open standing to Haughton, he has ‘general (common) law’ standing considering his commitment to being an ‘environmental activist’, his involvement in the approval process via his membership of a small NGO, and his home address location in the floodplain, which will suffer at the hands of the deleterious effects of climate change, exacerbated by the Minister’s approval of coal-fired power plants.Footnote 70 In recognising Haughton’s common law standing, the Court relied on Onus v AlcoaFootnote 71 and North Coast Environmental CouncilFootnote 72 to determine that Haughton had a special interest in anthropogenic effects of climate change beyond that of the interest of a member of the general public.Footnote 73 In essence, standing involves the identification of a legal entity entitled to invoke the jurisdiction of a court.Footnote 74 The open standing provisions found in s 123 of the EPA Act or in s 80(1)(c) of the Trade Practices Act (Cth) embrace the common foundation that the right of any person to bring proceedings arises whether or not any right of that person has been or may have been infringed.Footnote 75
The Dual Gas and Houghton cases reveal Australia’s sliding scale approach to standing in climate litigation by relaxing the standing threshold for plaintiffs pursuing claims relating to climate change impacts of certain projects. Standing for this class of litigants who can demonstrate that their interests are adversely affected by such projects is broad but with safeguards that make it less than universal standing for all potential plaintiffs.
4.3 Emerging Best Practice
There are several principles that constitute emerging best practices for standing in climate litigation. The underlying theme is that existing rules already permit for the granting of standing to climate litigation plaintiffs in most cases, based on the direct, personal, or special interest such plaintiffs have in the issue at stake in the case. This is illustrated by the approach of the courts in several cases to date, including Urgenda, Neubauer, and Klimaatzaak. In other cases, increased liberalisation of standing requirements should be undertaken to ensure that these important claims may be considered as widely as possible in courts around the world. Whether a decision to grant standing is perceived as resulting from a liberal approach or as flowing from a textual interpretation of existing rules, what matters most is that such a decision grants access to justice to those who seek to defend the rule of law.
There are several subparts to what emerging best practices on standing in climate litigation might entail. First, there may be an opportunity in some jurisdictions to create climate litigation exceptions. For example, scholars have argued for a climate litigation exception to the Plaumann test in the EU. The concern with applying this strict test for standing in climate litigation claims is that due to the global nature of the climate problem, an anomalous reality occurs in seeking to establish individual and direct harm: ‘the more serious the harm, the more people affected, the less chance for individual concern – a quite paradoxical outcome’.Footnote 76 Scholars in the US have similarly recognised the anomaly of ‘injury to all should not mean injury to none’ in climate litigation.Footnote 77
In contrast with these suggested approaches, Sabo and The People’s Climate Case represent an unfortunate impediment to much-needed liberalisation of standing requirements to address climate change in the courts. First, the ECJ bypassed an opportunity in these cases to recognise an exception to the Plaumann test in the climate litigation context. Second, the Plaumann test also should be modified for climate litigation claims because it is inconsistent with the EU’s obligation under the Aarhus Convention. Article 9(3) of the Aarhus Convention states that ‘members of the public [must] have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment’. Moreover, in its 2011 and 2017 reports, the Aarhus Convention Compliance Committee already held that the Plaumann criteria were ‘too strict to meet the criteria of the Convention’ because ‘persons cannot be individually concerned if the decision or regulation takes effect by virtue of an objective legal or factual situation’. Nevertheless, the ECJ did not grant an exception.Footnote 78
Recent developments in climate litigation jurisprudence from European Member States represent emerging best practice in establishing a more liberal standing in climate litigation. There are several dimensions of emerging best practice from these cases.
First, these cases confirm that the ‘injury to all is injury to none’ principle should not apply as a barrier to standing for climate litigation claims. For example, in Neubauer, the Court reached the following conclusion regarding the standing of the youth plaintiffs: ‘The complainants are individually affected in their own freedom. They are themselves capable of experiencing the measures necessary to reduce CO2 emissions after 2030. The fact that the restrictions will affect virtually everyone then living in Germany does not exclude the complainants from being individually affected.’Footnote 79 Similarly, in Klimaatzaak, there is a requirement under Belgian law that plaintiffs have a personal and direct interest in the claim. In this case, the first instance court concluded (which was confirmed on appeal) that both the individual plaintiffs and the NGO satisfy this requirement. The first instance court noted that ‘[t]he fact that other Belgian citizens may also suffer their own damage [from the adverse consequences of climate change], in whole or in part comparable to that of the plaintiffs as individuals, is not sufficient to reclassify the personal interest of each of them as a general interest’.Footnote 80 The Czech court in Klimatická used similar reasoning in establishing the standing of the individual applicants, noting that the individuals ‘must have been directly deprived of [their] rights by the interference’.Footnote 81 Since climate change, despite being a global issue with many victims, has ‘local adverse manifestations’, the Court concluded that citing its wide-ranging effects and pointing to the multitude of victims of those effects ‘does not in itself preclude a direct impairment of the rights of the applicants, who belong to that group’.Footnote 82
Outside of Europe, in Future Generations v Ministry of the Environment and Others, the Colombian Supreme Court determined the standing of the plaintiffs according to four criteria: a) there is a connection between the impairment of the collective and the individual rights; b) the plaintiff is the one directly affected; c) the impairment of the fundamental right must be proven, not hypothetical; and d) the judicial order must re-establish the individual guarantees, and not the collective ones. Twenty-five youth plaintiffs filed a tutela, a constitutional claim used to enforce the protection of fundamental human rights. The Supreme Court held that the youth plaintiffs had standing because their enjoyment of their fundamental rights was ‘substantially linked and determined by the environment and the ecosystem’.Footnote 83
Second, the fact that the most serious climate-related harms will occur in the future has also not prevented European courts from finding that individual and NGO plaintiffs have standing in climate change cases. For example, in Urgenda, the Dutch Supreme Court made some important conclusions regarding the ‘threshold test’ for the State’s obligations under ECHR, which may be useful for establishing standing in other cases:
… the Court of Appeal concluded, quite understandably, in para. 45 that there was ‘a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life’. The Court of Appeal also held, in para. 37, that it was ‘clearly plausible that the current generation of Dutch nationals, in particular but not limited to the younger individuals in this group, will have to deal with the adverse effects of climate change in their lifetime if global emissions of greenhouse gases are not adequately reduced’.Footnote 84
With respect to the State’s obligations to protect the right to life under Article 2 of the ECHR, the Court concluded: ‘The term “immediate” does not refer to imminence in the sense that the risk must materialise within a short period of time, but rather that the risk in question is directly threatening the persons involved. The protection of Article 2 ECHR also regards risks that may only materialise in the longer term.’Footnote 85 Similarly, in Neubauer, the Court made important conclusions regarding the rights of youth plaintiffs to seek recourse for climate harms that would not fully manifest until later in their lifetimes:
As things currently stand, global warming caused by anthropogenic greenhouse gas emissions is largely irreversible […]. It cannot be ruled out from the outset that the complainants will see climate change advancing to such a degree in their own lifetimes that their rights protected under Article 2(2) first sentence GG and Article 14(1) GG will be impaired ([…]). The possibility of a violation of the Constitution cannot be negated here by arguing that a risk of future harm does not represent a current harm and therefore does not amount to a violation of fundamental rights. Even provisions that only begin posing significant risks to fundamental rights over the course of their subsequent implementation can fall into conflict with the Basic Law […] This is certainly the case where a course of events, once embarked upon, can no longer be corrected […] The complainants are not asserting the rights of unborn persons or even of entire future generations, neither of whom enjoy subjective fundamental rights […]. Rather, the complainants are invoking their own fundamental rights.Footnote 86
Third, the special interests of youth and future generations have been recognised in these cases to support standing.Footnote 87 The jurisprudence is less clear on whether claims can be brought on behalf of unborn future generations; however, there is now extensive research on the adverse climate impacts that young people alive today will face.Footnote 88
Fourth, it is emerging best practice to enable lower standing thresholds in the context of public interest litigation like climate litigation. India and France have embraced this approach and Australia has applied a version of it in authorising relaxed standing when plaintiffs bring claims under certain environmental statutes. The urgency of the climate crisis and the legislative gridlock in many countries on climate change regulation require that the courts be as available as possible to dispense justice related to climate change issues. Reducing standing barriers is an important step toward achieving this objective.
Other measures to lower standing thresholds include the argument in the Philippines that standing is a procedural requirement that the court can waive in the exercise of its discretion. Allowing courts to waive standing in meritorious climate cases can promote enhanced access to the courts. Another strategy is the tutela in Colombia, which the youth plaintiffs in Future Generations v Ministry of the Environment and Others used to secure standing in a case compelling the Colombian government to ensure zero deforestation and granting legal personhood to the Colombian Amazon.Footnote 89
A jurisdiction that can benefit from this emerging best practice of selective waiver of standing requirements in climate litigation is New Zealand. The special damage rule in public nuisance litigation for climate change issues in New Zealand has prevented meritorious claims from proceeding on standing grounds. A relaxed version of this rule in climate litigation, or waiver of this requirement altogether for climate cases, would be a better approach for New Zealand to adopt in future public nuisance cases for climate change claims so that meritorious cases may proceed to trial to address the climate crisis.
Related to the issue of the special context of standing in climate litigation, the ‘vocational nexus’ theory is one mechanism that can help broaden who is a proper plaintiff in these cases. The Dual Gas and Houghton cases in Australia helped underscore that one’s profession and demonstrated interest and engagement on climate issues can support standing, even though this argument was rejected in the landmark US decision in Lujan v Defenders of Wildlife. Similarly, in Notre Affaire à Tous, the Paris Administrative Court afforded more relaxed standing to environmental NGOs.
Another important dimension of the emerging best practice in this area is to recognise who is bringing the claim and what population is the target of the requested protections. Courts should provide special consideration for sovereign and quasi-sovereign entities who bring climate litigation on behalf of their citizens. This approach was embraced in the ‘special solicitude’ principle in Massachusetts v EPA, but was not applied in the Kivalina case. Standing should also recognise the unique vulnerability of certain populations that may be seeking redress in these cases such as Indigenous communities or youth plaintiffs. The field of climate justice has emerged on the strength of their advocacy and the law of standing needs to catch up in many jurisdictions to enable these vulnerable populations to be considered proper parties to bring these claims. Deserving plaintiffs such as the Indigenous communities in Kivalina (US) and Smith (NZ) and the youth plaintiffs in Juliana (US), Pandey (India), and the People’s Climate Case (EU) had their claims dismissed on standing grounds.
4.4 Replicability
This section provides some reflections on the replicability or otherwise of the emerging best practice discussed earlier.
Some strategic considerations for the near term are important to consider. First, European climate plaintiffs are more likely to succeed by bringing their climate claims in national courts rather than to the ECJ, as evidenced by the outcomes in the Urgenda (Netherlands) and Grande Synthe (France) decisions as compared to The People’s Climate Case (EU). Second, the Intergovernmental Panel on Climate Change (IPCC) Sixth Assessment ReportFootnote 90 released in August 2021 also should help lower barriers for climate litigation plaintiffs by providing broader scientific foundations for injuries as well as enhanced support for attributing those injuries to GHG contributions from government and private sector action and inaction.
Recent developments around the world on rights of nature also offer promise. Efforts to protect non-human entities (i.e. wildlife and natural resources) from climate impacts may be enhanced by application of mechanisms such as legal personhood and rights of nature protections. Legal personhood protections would confer standing directly to these entities who would then be represented by human guardians in court. Two examples of success on these theories are the Colombia Supreme Court’s assignment of legal personhood in 2018 to the Colombian Amazon to curb deforestation as a primary driver of climate change in a youth climate caseFootnote 91 and the Ecuador Constitutional Court’s decision in 2021 upholding rights of nature protections for Los Cedros Protected Forest.Footnote 92 Two other jurisdictions have not yet succeeded in these efforts. The first example is an effort in Australia to confer rights of nature or legal personhood protections to the Great Barrier Reef as leverage to protect it from continued decimation from ocean acidification and ocean warming.Footnote 93 In the second example, the Belgian court in Klimaatzaak concluded that ‘trees are “not subjects of rights”’ in Belgium and therefore lacked standing to bring a claim.Footnote 94 This case may, however, leave a door open in cases where nature enjoys legal personhood protections in a given jurisdiction.
The Netherlands, as reflected in Urgenda, and other jurisdictions around the world recognise universal standing for associations to bring public interest class actions. While universal standing is a plaintiff-friendly standard for climate litigation and a valuable tool to enhance access to the courts for climate litigation plaintiffs, it may not be the right approach in all jurisdictions that seek to apply standing requirements to safeguard judicial economy and separation of powers.
Proponents of strict standing barriers advance the common argument that such requirements avoid ‘opening the floodgates of litigation’. This argument is more of a perceived than real concern in climate litigation. Even more so than many other forms of litigation, climate litigation is a costly, complex, and time-consuming undertaking for plaintiffs that is not pursued on the basis of whims. In addition to these ‘self-restraint’ barriers that will naturally limit the number of these cases, jurisdictions typically have safeguards in place in their procedural rules to punish frivolous litigation. Finally, even if causation requirements are relaxed for purposes of standing analysis, causation will remain a daunting barrier for climate litigation plaintiffs at trial. Given these three constraints on potential climate litigants, it is unlikely that relaxed standing requirements would overwhelm judicial systems around the world.
A more relevant issue regarding the role of strict standing requirements as a gate-keeping mechanism is the concern over allowing ‘generalized grievances’ to proceed in the court system. The courts have a specific role in promoting justice – they resolve disputes between parties. There is a danger that relaxed standing requirements could transform the courts into a secondary legislative body to address generalised concerns about the government’s policies, which should be taken up directly with the political branches and not addressed in the courts. Climate litigation, however, is not pursued as an end in itself to displace the proper and primary role of political branches in implementing climate governance policy. Rather, it is merely a first step to promote awareness of the need to enhance climate regulation and an opportunity to develop jurisprudence that can better protect litigants from climate change impacts. The ultimate goal of these efforts is to goad future legislative action, not to seek to regulate climate change one case at a time.
Two jurisdictions that require the most reform to enable enhanced standing in climate litigation are the US and the EU. The US maintains that the Article III requirements of injury, causation, and redressability must be met as a constitutional minimum standard in determining who are proper parties in cases or controversies. The EU requires application of the strict Plaumann test in determining who is a proper party to challenge the laws of the EU. In both instances, the existing approaches to standing in these countries have had a chilling effect on plaintiffs seeking to bring climate litigation claims in cases like Juliana in the US and the People’s Climate Case in the EU.
4.5 Conclusion
Standing has been and will remain a controversial feature in climate litigation in the near future in many jurisdictions around the world. While standing upholds important principles of promoting judicial economy, avoiding generalised grievances, and maintaining separation of powers, there is a need to enhance climate litigation plaintiffs’ access to the courts to seek redress of their climate regulation concerns. There are many procedural and substantive bases on which climate litigation claims may fail. Allowing more liberalised standing in these cases merely affords these potentially meritorious claims a better opportunity to be heard.
Easing standing burdens in climate litigation can be guided by the following core principles: (1) climate litigation exceptions to standing requirements may be appropriate in some jurisdictions, building on the approach of reducing standing hurdles for public interest litigation in some jurisdictions; (2) sovereign or quasi-sovereign entities bringing climate litigation claims should have enhanced access to the courts to be able to protect their citizens from climate impacts as in Massachusetts v EPA (US) and Grande Synthe (France); (3) the needs of uniquely vulnerable populations such as Indigenous communities and youth plaintiffs should be considered in evaluating standing thresholds, perhaps similar to international law’s consideration of the ‘special needs of developing nations’; (4) climate plaintiffs should be able to secure standing based on their professional and circumstantial relationships to climate change concerns as in Dual Gas (Australia); and (5) non-human plaintiffs may be able to gain standing in their own right in climate litigation through mechanisms such as legal personhood and rights of nature.
5.1 Introduction
Admissibility could be broadly defined as the group of conditions that render a lawsuit or petition worthy of being reviewed by a judicial or quasi-judicial body, either at the national or international level. Admissibility requirements vary according to jurisdiction and type of legal action but generally relate to procedural requirements. The conflation of the term ‘admissibility’ with similar ones such as ‘jurisdiction’ and ‘standing’ tends to be common. However, some tribunals (including arbitral tribunals) and academics make a distinction by which:
jurisdiction pertains to the ability or power of a […] tribunal to hear a claim, whereas admissibility relates to the characteristics of a particular claim. Accordingly, a tribunal would have to decide, as a primary issue, whether it has jurisdiction, before determining whether a particular claim is admissible. It thus follows that, once a tribunal has upheld a jurisdictional objection, it would dismiss the case and consequently not decide upon objections to admissibility.Footnote 1
Therefore, if jurisdiction reflects a court’s power to adjudicate a dispute, then admissibility pertains to the terms permitting a court to exercise (or decline to exercise) its legal powers. The authorisation to decide whether to adjudicate a dispute which falls under a court’s jurisdiction may be explicitly stated in the court’s constitutive instruments or implicitly derived from them.Footnote 2 Some international legal instruments will also explicitly spell out criteria for admissibility and stress whether the claim before the court constitutes an abuse of legal process or whether it is well founded.Footnote 3 In that sense, courts often find themselves in a position to manage what cases they should or should not dismiss, considering their permanent cautious approach not to arrogate other branches of power’s functions and potentially opening the floodgates to complex climate cases that might be better dealt with in the law-making sphere.Footnote 4
The issue of admissibility is highly relevant to climate litigation because it represents one of the first procedural hurdles for plaintiffs seeking climate-related relief. Accordingly, if the case is dismissed at such an early stage of the legal process, then alleged victims of climate change will, at worst, be left without proper access to justice and, at best, be deprived of discussing the merits of their case. For this reason, broadly speaking, a good emerging practice across different jurisdictions is to balance procedural rigour and consideration of applicants’ particular circumstances in the context of the climate crisis. This chapter focuses mainly on admissibility issues before international and regional human rights courts and bodies, such as the requirement to exhaust domestic remedies, because the legal discussion is more noticeable in those spheres. Additionally, very few national-level cases have addressed the issue of admissibility in detail.
As of May 2021, the climate litigation databases from the Grantham Institute at the London School of Economics and the Sabin Center at Columbia University reported 1,841 ongoing or concluded climate change litigation cases from around the world.Footnote 5 Of these, 1,387 were filed before courts in the United States (US), while the remaining 454 were filed before courts in thirty-nine other countries and thirteen international or regional courts and tribunals (including the courts of the European Union).Footnote 6 About 20 per cent of all the cases (369) reached an outcome, of which 58 per cent (215) were favourable to climate change action, 32 per cent (118) had unfavourable outcomes, and 10 per cent (36) had no discernible likely impact on climate policy.Footnote 7 We can infer from this empirical evidence that at least 68 per cent of settled cases (favourable and no discernible likely impact outcomes) were not precluded by admissibility barriers because they were decided on the merits. Admissibility may have been a factor in the remaining 32 per cent of cases. However, this hypothesis cannot be empirically assessed due to unavailable specific data. Despite this, it is clear from the available evidence that most courts and tribunals worldwide permit cases to proceed to the merits stage of litigation, where substantial aspects are discussed instead of stalling and rejecting the case altogether based on admissibility grounds.Footnote 8
From the point of view of attaining proactive and protective climate action, this trend suggests that, overall, judges are not interpreting procedural admissibility aspects of a legal case as an immediate barrier but rather are adopting a flexible approach to admissibility. Therefore, emerging best practices in the context of admissibility requirements in climate litigation reflect a careful balancing between a rigorous understanding of procedural rules with a sensitivity to the issues at stake in the climate emergency and an understanding of the role of the judiciary in clarifying existing laws that could further climate ambition and protection.
5.2 State of Affairs
Despite the empirical evidence showing that most climate litigation cases succeeded at the admissibility stage, earlier and recent cases have raised important questions about admissibility requirements. These questions, which could play an influential role in the cross-fertilisation of interpretive norms, have been highlighted mainly by international judicial and quasi-judicial bodies specialised in international human rights law. In these cases, the main hurdle has been some established concerns of admissibility requirements, namely the failure of applicants to exhaust domestic remedies, the failure to establish how the alleged facts would characterise a violation of rights, and the failure to clarify the victim’s status. This section will, therefore, explore some of these points in case law.
However, before delving directly into the minutiae of case law, it is important to recall some general aspects of admissibility requirements at the international level, which, to some extent, are also present in many domestic jurisdictions. Comparing the number of cases in the three regional human rights systems, it is conspicuously evident that the European human rights system fares better than its African and Inter-American counterparts regarding the number of petitions admitted and eventually resolved.Footnote 9 This is, however, the result of barriers to access to formal institutionalised justice at the domestic level in Africa and Latin America, mainly due to racial and socioeconomic inequalities, lack of information on the scope of their rights, language barriers, cumbersome lawyer costs and court fees, excessive formalism, procedural delays, and geographical location of tribunals.Footnote 10 After these structural barriers are factored in, admissibility in the regional human rights systems also shows some numeric disparities. In 2014, the European system declared 97 per cent of petitions to be inadmissible; the Inter-American system declared 8 per cent inadmissible; and in the African system, 27 per cent of the cases under consideration were declared inadmissible.Footnote 11 This overview demonstrates that a case’s likelihood of overcoming admissibility barriers will depend on the regional human rights system in which it is adjudicated.
In all international human rights bodies, admissibility is determined through a set of criteria that must be fulfilled cumulatively.Footnote 12 The admissibility criteria applied by the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR) include criteria related to ratione personae,Footnote 13 loci,Footnote 14 materiae,Footnote 15 and temporis;Footnote 16 characterisations of the claim; exhaustion of domestic remedies; and non-duplication of procedures.Footnote 17 Admissibility criteria for the European Court of Human Rights (ECtHR) are enumerated in Articles 34–35 of the European Convention on Human Rights (ECHR). They are concerned with jurisdictional matters (compatibility of the application or a complaint with the provisions of the ECHR ratione materiae, personae, temporis, and loci), procedural matters (six-month rule and exhaustion of domestic remedies), requirements concerned with the substantive elements of the complaint (manifestly ill-founded and no significant disadvantage criteria), and hybrid criteria that consist both of procedural and substantive elements (requirement of non-repetition and prohibition of the abuse of the right of application), or procedural and jurisdictional criteria (prohibition of anonymous applications).Footnote 18
A notable and early example of how admissibility manifests as a relevant issue in climate litigation can be found in the pioneering petition filed by several Inuit Peoples of the Arctic against the United States before the IACHR in 2005.Footnote 19 In this petition, the Inuit requested the IACHR to recommend that the United States adopt mandatory measures to limit its greenhouse gas (GHG) emissions, consider the impacts of GHG emissions on the Arctic in environmental impact assessments, establish and implement a plan to protect Inuit culture and resources, and provide assistance necessary for Inuit to adapt to the impacts of climate change that cannot be avoided.
Applicants addressed a potential dismissal of their claim based on admissibility requirements in their petition. They stressed that Article 31.1 of the IACHR’s rules of procedure specifies that the IACHR, to admit the case, ‘shall verify whether the remedies of the domestic legal system have been pursued and exhausted in accordance with the generally recognised principles of international law’.Footnote 20 They also cited the exemptions to the general rule of admissibility, namely that the exhaustion requirement shall not apply when the domestic legislation of the State concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated.Footnote 21 In that vein, the applicants argued that in the US, there are no remedies suitable to address the infringement of their rights, and therefore, the requirement that domestic remedies be exhausted does not apply in their case, meaning consequently that the petition is admissible under the IACHR’s rules of procedure.Footnote 22
A year later, the Assistant Executive Secretary of the IACHR answered the applicants in a letter stating that after having completed the study outlined in Article 26 of the IACHR’s Rules of Procedure, the IACHR determined that it would not be possible to process the petition because the information it contains ‘does not satisfy the requirements set forth in those Rules and the other applicable instruments’.Footnote 23 Specifically, the information provided did not ‘enable the IACHR to determine whether the alleged facts would tend to characterise a violation of rights protected by the American Declaration on the Rights and Duties of Man’.Footnote 24
Article 26 of the IACHR’s Rules of Procedure concerns the initial review of a petition by the Executive Secretariat of the Commission, who shall be responsible for the study and initial processing of petitions lodged before the Commission that fulfil all the requirements. According to the Executive Secretariat, which served as the first filter of a petition, the applicants did not fulfil the requirements and thus declared it unadmitted.
More recently, on October 12, the United Nations Committee on the Rights of the Child (CRC) found the communication submitted by sixteen children inadmissible for failure to exhaust domestic remedies under Article 7 (e) of the Optional Protocol to the Convention on the Rights of the Child. This case began in September 2019, when sixteen children from different countries filed a claim alleging that Argentina, Brazil, France, Germany, and Turkey violated their rights under the UN Convention on the Rights of the Child because they had not been ambitious enough in reducing their GHG emissions. Specifically, the claimants argued that the countries had failed to take necessary preventive and precautionary measures to respect, protect, and fulfil the claimants’ rights to life, health, and culture, as guaranteed by the Convention.Footnote 25 As a general remark, the CRC recalled that authors must use all judicial or administrative avenues that may offer them a reasonable prospect of redress and that domestic remedies need not be exhausted if they objectively have no prospect of success. For example, in cases where, under applicable domestic laws, the claim would inevitably be dismissed or where established jurisprudence of the highest domestic tribunals would preclude a positive result. However, the CRC noted that mere doubts or assumptions about the success or effectiveness of remedies do not absolve the authors from exhausting them.Footnote 26
In light of this, the CRC found the petitions inadmissible because the authors did not attempt to exhaust all domestic remedies that were reasonably effective and available to them to challenge the alleged violation of their rights under the Convention and that they did not sufficiently substantiate their arguments on the exception under Article 7 (e) of the Optional Protocol that the application of the remedies is unlikely to bring effective relief.Footnote 27
Another impediment to admissibility in climate litigation relates to the status of victim or the jurisdiction rationae personae. Here, courts are clear about them not being appropriate fora for the institution of an actio popularis and that their task is not usually to review the relevant law and practice in abstracto or without a concrete victim but to determine whether how they were applied to or affected the applicant gave rise to a violation of the relevant treaty.Footnote 28 Therefore, the notion of ‘victim’ broadly denotes the person or persons directly or indirectly affected by the alleged violation. Hence, it is not just the direct victim or victims of the alleged violation who are concerned but also any indirect victims to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to an end. It was precisely this impediment that arose in the Armando Ferrão Carvalho and Others v The European Parliament and the Council, in which ten families, including children, from Portugal, Germany, France, Italy, Romania, Kenya, Fiji, and the Swedish Sami Youth Association Sáminuorra, brought an action in the EU General Court seeking to compel the EU to take more stringent GHG emissions reductions. The plaintiffs alleged that the EU’s target to reduce domestic GHG emissions by 40 per cent by 2030, compared to 1990 levels, is insufficient to avoid dangerous climate change and threatens plaintiffs’ fundamental rights of life, health, occupation, and property. The applicants’ inference did not convince the Court that they were individually concerned, given that although all persons may, in principle, each enjoy the same right (such as the right to life or the right to work), the effects of climate change and, by extension, the infringement of fundamental rights is unique to and different for each individual. The Court stressed that the claim that such an act infringes those rules or rights is not sufficient in itself to establish that the action brought by an individual is admissible without running the risk of rendering procedural requirements meaningless, insofar as the alleged infringement does not distinguish the applicant individually, just as in the case of the addressee.Footnote 29
The grounds for annulling a legally binding piece of EU legislation, such as the ‘climate package’ plaintiffs sought to annul, arise under certain conditions, such as a lack of competence and an infringement of an essential procedural requirement. However, the admissibility requirements for such actions are very strict and include a requisite that an EU act is of ‘direct and individual concern’ to the person bringing the case. According to EU case law, the notion of direct concern presupposes that the impugned EU legislative act affects the legal situation of the person concerned directly and leaves no discretion to those responsible for its implementation.Footnote 30 Furthermore, an EU legislative act will only be of individual concern to a person bringing the action if it meets the criteria of what has become known as the ‘Plaumann test’.Footnote 31 This test assesses if the EU law affects a person because of specific attributes that are peculiar to them or because of circumstances in which they are differentiated from all other persons and, under these factors, distinguish them individually. In other words, the threshold to meet these admissibility requirements is relatively high, which explains why plaintiffs failed to convince the Court.
At the national level, some climate litigation cases have also been dismissed due to a lack of admissibility requirements, including the impossibility of drawing the status of victims. For instance, in the Colombian case of Germán Espinosa Mejía v Colombia – arguably the first attempt to integrate climate change and human rights arguments in a Latin American court – a narrow approach to legal interpretation and application on admissibility was adopted. The plaintiff filed a constitutional injunction alleging the violation of the right to a dignified life due to a lack of suitable environmental and climate protection policies. The Supreme Court of Colombia dismissed the legal action because the plaintiff could not represent an imprecise group of present and future generations.Footnote 32 In this case, the outcome demonstrates that no uniform criteria exist across chambers and judges vis-à-vis the requirements to accept or dismiss tutelas or constitutional injunctions.
The examples covered in this section are rulings that have ripple effects across the climate law community, who have expressed their views on the possible impacts these precedents might have on interpreting admissibility requirements in other courts.Footnote 33 However, as was shown earlier, these instances in which cases are dismissed purely based on admissibility claims are not most cases, which means that most courts are adopting a relatively lenient approach against rigid procedural formalism by extending the interpretation to a systematic integration according to Article 31 of the Vienna Convention on the Law of Treaties.Footnote 34 In that vein, in VZW Klimaatzaak v Kingdom of Belgium and Others, the Brussels Court of First Instance referred to the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to interpret admissibility requirements under domestic law – which was confirmed on appeal.Footnote 35 Through this reading, the Court admitted the lawsuit and analysed the petition’s merits, an approach that could be replicable in other jurisdictions, as will be discussed in subsequent sections.
5.3 Emerging Best Practice
As evinced in the case law, a best practice approach to admissibility includes a transparent discussion of admissibility criteria; provides effective balancing and in-depth reasons as to why a petition is not admitted; accommodates a fast-tracking procedure; and takes into consideration contextual aspects in the rationale of why the legal action is admitted or not. For instance, in Shrestha v Office of the Prime Minister et al, the Supreme Court of Nepal transparently discusses admissibility criteria and engages in a balancing exercise considering the context. Specifically, it did not explicitly disaggregate standing, jurisdiction, and admissibility issues. However, it recognised that, because the claim invoked constitutional rights and, further, the ‘threat to present and future generations posed by climate change affects every citizen, hence, the matters raised in the current petition are of public concern’, there was ‘a meaningful relation between the issues and the petitioners’, and it accordingly accepted the case for consideration on the merits.Footnote 36 In the case of Milieudefensie et al v Royal Dutch Shell plc, the 2021 decision from the Hague District Court stressed that the interests of current and future generations of the world’s population, as served with the class actions, are not suitable for bundling because, given the difference in effects of climate change across the globe, they fail to properly constitute a ‘similar interest’. However, the interests of current and future generations of Dutch residents and the inhabitants of the Wadden Sea area are suitable for bundling because they are sufficiently similar. The claim, therefore, is deemed admissible concerning Dutch residents and the inhabitants of the Wadden region.Footnote 37 This could be argued as an example of best practice because the Court considers the context in which the case takes place and is transparent in doing so.
Another example of best practice can be retrieved from the Teitiota v New Zealand communication before the UN Human Rights Committee. In 2015, Ioane Teitiota, a citizen of Kiribati, filed a communication with the UN Human Rights Committee claiming that New Zealand had violated his right to life by denying him asylum despite his assertions that climate change made Kiribati uninhabitable.Footnote 38 The Committee, in analysing the grounds of admissibility, noted that the author did exhaust all available domestic remedies and confirmed that the matter was not being examined under another international adjudicative procedure, following the Rules of Procedure of the Optional Protocol, thus justifying the Committee’s competence to examine the communication.Footnote 39 Furthermore, the Committee stated that admissibility of the communication requires that the author justifies not only the victim status, which in cases of deportation or extradition means the imminent decision to remove the individual, but also an imminent harm in the receiving State. The Committee discussed the imminence requirement by accepting the author’s argument that climate change leads to impacts in Kiribati, namely lack of potable water, employment possibilities, and a threat of serious violence caused by land disputes.Footnote 40 Notwithstanding the Committee’s rejection of the communication on the merits, it did justify its position on the admissibility requirements by having considered the precarious environmental reality the author faces in his country of origin due to climate change.
In April 2018, Colombia’s Supreme Court of Justice handed down the Future Generations v Colombia tutela brought by twenty-five young people who were advised by the national NGO Dejusticia. This case recognised the correlation between deforestation, climate change, and the infringement of human rights of present and future generations.Footnote 41 The Supreme Court of Colombia discussed procedural details regarding the tutela process. In the first ruling, the District Court determined that the tutela was not an appropriate mechanism to file this particular action because of the collective nature of the problem. However, a tutela can be filed if (i) it shows the connection between the violation of collective and fundamental or individual rights, (ii) the person filing the tutela is the person directly affected, (iii) the violation of a fundamental right is not hypothetical but fully proved, and (iv) the judicial order being sought is oriented towards restoring individual rights and not collective ones.Footnote 42 The Supreme Court found that the fundamental rights to life, health, minimum subsistence, freedom, and human dignity are substantially linked and determined by the environment and the ecosystem. Without a healthy environment, subjects of law and sentient beings in general will be unable to survive, much less protect those rights for our children or future generations. Therefore, the Court added that the exceptional proceeding of the tutela is sufficiently demonstrated to resolve in depth the problems raised because the jurisprudential assumptions for the lawsuit are met, given the connection of the environment with fundamental rights.Footnote 43
In the Inter-American Human Rights System, the Court and the Commission have considered the particular cultural characteristics of the applicants and tailored admissibility requirements accordingly. For example, in the case of Indigenous peoples, the IACHR has consistently stated that these communities must exhaust only those remedies that contemplate the particular characteristics, either economic or social, of these groups as well as their particular situation of vulnerability, their customary law, values, uses and customs.Footnote 44 The African Commission on Human and Peoples’ Rights (ACHPR) has given an even more purposive and generous interpretation than other regional systems.Footnote 45 Hampson, Martin, and Viljoen have noted the following:
The ACHPR has consistently held that the requirement that ‘domestic remedies, if any’ need to be exhausted means that only remedies that are ‘available’ (which can be pursued without impediment), ‘sufficient’ (capable of providing the required remedy), and ‘effective’ (offering a real prospect of success) need to be exhausted.Footnote 46 The ACHPR has even gone as far as exempting complainants from this requirement in respect of systemic, widespread, and well-publicized violations, on the basis that the purpose of the requirement (namely, that a state should have notice and thus an opportunity to rectify the situation) had been served.Footnote 47
Another best practice adopted by the ECtHR and IACHR is to expedite priority cases where urgent or systemic rights violations are alleged. This allows admissibility to be assessed promptly. On 30 November 2020, the European Court of Human Rights fast-tracked a climate case brought against thirty-three defendant countries, requiring them to respond by the end of February 2021. On 4 February 2021, the Court rejected a motion by the defendant’s government asking the Court to overturn its fast-tracking decision. The governments had asked the court to overturn priority treatment of the case and to hear arguments only on the admissibility of the case. The Court sent a letter to the parties rejecting these motions and gave the defendants until 27 May 2021 to submit a defence on admissibility and the case’s merits.Footnote 48 However, it should be noted that according to the Global Legal Action Network, who are supporting the case, only a tiny minority of cases before the Court are fast-tracked and communicated.Footnote 49
In the Inter-American system, a new rule authorises expediting consideration of a petition due to the age or health condition of the victim, the potential application of the death penalty, the relationship between the petition and precautionary measures already adopted in that case, whether the victim is deprived of liberty, that there is an express intention of the State to enter into a friendly settlement, or when the petition addresses a structural situation. The IACHR had already implemented these rules in practice before they were included in its Rules of Procedure.Footnote 50
5.4 Replicability
The creation of exceptions to ordinary rules of standing is a practice that could be replicated across jurisdictions. These exceptions arguably allow some room for manoeuvre for interpretive purposes in which judges could factor in some best practices mentioned earlier, such as flexibility and sensibility towards the context in which the case is grounded. For instance, in the case of the exhaustion of domestic remedies requirement, judges could employ a more thorough analysis of why domestic litigation may not be the most optimal avenue for a complex case such as climate change, especially if there are some extraterritorial elements. For instance, some commentators have argued that in the Sacchi et al v Argentina et al case, the Committee on the Rights of the Child could have avoided the dismissal of at least certain applicants if it had duly considered the applicant’s argument that under ‘domestic laws their claims would inevitably be dismissed or that the established jurisprudence of the highest domestic courts would clearly preclude a positive result, then these arguments have to be assessed under the “no prospect of success” test’.Footnote 51
Another factor that enables replicability is the prevalence of interpretation of the law through the principle of systemic integration. According to the Vienna Convention on the Law of the Treaties, systemic integration refers to the importance of contextual elements that should be considered, such as subsequent practice and international law applicable to the treaty parties, when interpreting the normative content of the primary rule.Footnote 52 At the domestic level, the essence of systemic integration can also be applied mutandis mutandi. In the context of climate litigation and overcoming admissibility hurdles, interpreting the law systematically and integrally implies resorting to those obligations provided by law that facilitate access to justice for environmental issues. In Europe, for instance, the burden of persuasion for victimhood could be lessened if courts seriously apply the provisions of the Aarhus Convention in light of domestic legislation (as in Milieudefensie and VZW Klimaatzaak v Kingdom of Belgium and Others). The same is true in Latin America, where judges could enable access to justice for applicants if they integrate the Escazu Agreement on Procedural Environmental Rights content. Article 8 of the Agreement affirms that States shall have, considering their circumstances, broad active legal standing (as a proxy to admissibility) in defence of the environment under domestic legislation.Footnote 53 Systematic interpretation could also be guided by amici curiae, which showcases the opinion of experts in certain areas of law or other disciplines to guide the courts in their decisions. This institution has been used in the context of climate litigation, and expressly, some experts have commented on specific admissibility aspects, as in the Sacchi case.Footnote 54
Another practice that could be replicated irrespective of jurisdiction is for higher courts to take a more flexible approach to admissibility in reviewing lower court decisions. For example, in the Urgenda Foundation v The Netherlands case, the District Court of the Hague accepted the government’s argument that neither the Urgenda Foundation nor the individual plaintiffs were entitled to invoke the human rights provisions of the ECHR because they did not fulfil the admissibility criteria of Article 34 of that Convention. In particular, the Court found that the individual plaintiffs had not provided evidence that they were actual or potential victims of the alleged violations of their human rights.Footnote 55 This conclusion was later reversed by the Court of Appeal, which upheld the State’s obligations derived from the ECHR as the principal legal basis for its own judgment.Footnote 56
Similarly, it is also replicable for some courts to vocally unfollow the interpretation of admissibility requirements of other courts. For example, the Brussels Court of First Instance expressly stressed that the fact ‘that other Belgian citizens may also suffer their own damage, in whole or in part comparable to that of the plaintiffs as individuals, is not sufficient to reclassify the personal interest of each of them as a general interest’.Footnote 57 Insofar as necessary, the Court continued, the teaching of the CJEU’s Carvalho et al judgment is not relevant, insofar as in that judgment the Court, and the European Union Court before it, ruled on the admissibility of an action for annulment brought by private persons. This difference results from the autonomous interpretation of the admissibility conditions by courts acting within their own spheres of competence.Footnote 58
5.5 Conclusion
The empirical evidence from the primary databases on climate litigation worldwide shows that climate cases are growing in number and that most cases are successful. This indicates that admissibility requirements, as a procedural aspect, are not commonly deployed by judges to dismiss these cases. The tendency is that judges interpret admissibility criteria in a way that allows the case to move towards the merits stage of litigation, a contentious phase that allows the discussion of substantive matters that enable the clarification of certain climate law lacuna.
Despite the general trend, some courts and tribunals worldwide are still interpreting admissibility requirements in a fashion that impedes climate cases from reaching the merits stage. These precedents, although far from representing a majority practice, could play a role in influencing the criteria of courts with a common procedural architecture, especially in terms of admissibility requirements. As an example, the fact that the CRC dismissed the children’s petition based on lack of exhaustion of domestic remedies could influence the interpretation of the ECtHR vis-à-vis the climate cases that are pending before it, specifically the Duarte Agostinho and Others v Portugal and 32 Other States case.
It is nevertheless important to emphasise that best practice across jurisdictions is emerging to counteract specific trends of interpretation of admissibility requirements that might impede the progress of a climate case from reaching the merits stage. If proactive climate action is a moral imperative, and under the premise that a deeper discussion on the merits within the context of climate litigation could fulfil such a moral imperative, then using a rigid and overly formalistic approach to admissibility could obstruct said goal. As a response, judges worldwide use some interpretive techniques that the law provides to overcome a relatively narrow reading of procedural requirements. This approach allows judges to be mindful of not only the contextual elements in which a case is grounded but also the urgency of the challenge of the climate crisis, thereby unveiling the necessity of prioritising justice over forms in a substantiated and rigorous fashion. The legal tools that allow these approaches are replicable across jurisdictions, including transparency of rationale, exceptional provisions to lessen the burden of specific requirements, systemic interpretation, and reinterpretation of the law, which distances itself from other courts in favour of admissibility flexibility.
6.1 Introduction
In December 2019, a Supreme Court ruling in the Netherlands made headlines worldwide.Footnote 1 In Urgenda Foundation v State of the Netherlands, the highest national court confirmed the previous lower instance rulings, obligating for the first time a State to reduce general emissions in line with international commitments. The Dutch Supreme Court found that the State’s inaction on climate change violated its citizens’ rights to life and privacy under Articles 2 and 8 of the European Convention on Human Rights (ECHR), respectively, and ordered the State to cut its greenhouse gas (GHG) emissions by at least 25 per cent by 2020, compared to levels in 1990. By May 2022, over seventy cases worldwide had been filed to challenge the implementation or ambition of climate targets and policies affecting the whole of a country’s economy and society.Footnote 2
In such cases, the plaintiffs have a political purpose: they seek societal change, typically (but not necessarily) more ambitious climate protection. Governments are often the defendants in such cases, which increases the political significance of the litigation.Footnote 3 Sometimes national legislation is challenged.Footnote 4 The relationship between the three branches and hence the idea of separation of powers lies at the core of the debate about strategic climate litigation. While some cases have been dismissed and described as a ‘direct attack on the separation of powers’,Footnote 5 many cases have been upheld, with apex courts issuing decisions that are favourable for climate action. This chapter discusses the relevance of separation of powers in a wide array of climate cases including in terms of the outcome of successful and unsuccessful cases. The purpose is to identify emerging best practice from the case law to date.
Building on the definitions and methods in Section 6.2, we ask: ‘In climate litigation cases where separation of powers concerns arise, how do courts engage with that matter?’ Our overview of case law development in Section 6.3 suggests that separation of powers concerns arise at four stages in the adjudicatory process: justiciability; recognising a right or duty; establishing a breach; and determining a specific obligation, respectively. In cases that result in a legally enforceable obligation, furthermore, separation of powers concerns may relate to whether the obligation is procedural or substantive. In some of these cases, courts innovatively provided procedural obligations for a breach of substantive duties. In Section 6.4, we consider conditions for best practice. A central element of emerging best practice is that courts provide arguments for the rightfulness of enforcing the limits that the law imposes on the other branches. This includes prominent international norms, including open-textured and, at times, non-binding ones, and human rights norms. Another relevant (and replicable) element is that courts develop legally enforceable standards interpreting open-textured norms in light of best available science, usually found in the reports of the Intergovernmental Panel on Climate Change (IPCC). Lastly, we discuss the conditions for replicability (Section 6.5) of climate rulings across jurisdictions.
6.2 DEFINITIONS and Methods
Separation of powers is considered ‘the litmus test of legal and political legitimacy’ in constitutional democracies.Footnote 6 Yet, there is no one legal or conceptual blueprint of separation of powers. It is concretised in very different ways in different legal orders. In climate litigation, it is precisely a core issue of separation of powers that arises most, namely the boundaries of judicial powers.
The concept of separation of powers applies to the relationships between the legislative, executive, and judicial branches of government, sometimes referred to as the trias politica. In this chapter, we focus on the relationship of the judiciary to the other branches. We make sense of separation of powers by distinguishing between the concept and different conceptions.Footnote 7 We take a concept to convey a singular meaning or purpose, whereas different conceptions are different views on what it takes to achieve that purpose. The concept of separation of powers describes a constitutional arrangement of branches of government that avoids the concentration of power. However, jurisdictions apply the concept (realise the purpose) of separation of powers differently, resulting in distinct conceptions of separation of powers.
A functional conception of separation of powers entails that the different branches exercise different functions. According to this idea, law-making is the responsibility of parliaments and the execution of laws the responsibility of governments, while courts apply the laws. This account grants the legislature ‘an initiating place on the assembly line of law-making/law enforcement’ and is associated with ‘a principle of legislative supremacy’.Footnote 8 This conception relies heavily on the possibility to hold political representatives accountable for their decisions through regular elections. When defendants in climate litigation point to the ideal of separation of powers, this is often the conception they have in mind. Yet, at times, this conception may also figure in support of judicial intervention in climate litigation.
A relational conception, by contrast, entails that functions are shared between the different branches. This conception explicitly ‘aims to ensure that the tension between law and majoritarian politics is perpetuated and that neither law nor politics dominates the other’ over an extended period of time.Footnote 9 It characteristically relies on the capacities of the judiciary to control the exercise of powers by the other branches of government through judicial review. This conception typically appears in support of judicial intervention in climate litigation.
We treat the two conceptions just discussed as theoretical ‘ideal types’, which we do not expect to be observed in pure form.Footnote 10 A strictly functional conception of the separation of powers would exclude that the judicial branch ever exercises the powers of another branch; yet, it is accepted that judicial interpretation may also create law. A maximally relational construction would entail that the judicial branch may enjoy as much political power as the legislative and executive branches. Yet, even the most relational system among existing jurisdictions affirms basic functional separation. On our account, any legal system could be placed on a scale between a strictly functional enactment of separation of powers to a maximally relational construction.Footnote 11 Examples of jurisdictions that tend more toward the functional conception are France, the Netherlands, and Sweden. Examples of more relational jurisdictions include Germany and the United States.
Such a scale can be used for different methodological purposes in a study on climate litigation. When a court exerts less power over climate policy in a single case, we take it to express a more functional conception; when a court exerts more power over climate policy in a single case, we take it to express a more relational conception. As mentioned, this does not exclude that a functional conception is used to justify ruling in favour of full-on enforceable substantive obligation. A prime example is the Urgenda case.Footnote 12
To assess how courts handle separation of powers concerns in climate litigation, we have used the dataset of climate litigation cases compiled for this Handbook as the point of departure. We focus on cases where the issue of separation of powers has been reported as salient.
6.3 Case Law Development – State of Affairs
The categorisation of adjudicatory stages is divided into four levels and identifies two subcategories of obligations (see Figure 6.1). As any categorisation, it is subjective to an extent. In individual cases, courts may consider separation of powers at one or several of these adjudicatory stages.
Figure 6.1 The four levels and two subcategories of obligations making up the adjudicatory stages where separation of powers concerns arise
6.3.1 Justiciability
When courts consider whether a climate case is justiciable, separation of powers is the single most decisive underlying principle. Many procedural rules serve the purpose of protecting each branch’s core constitutional powers, that is, separation of powers. One could think of standing, availability of legal instruments to require governmental action, or time limits. This subsection considers the judicial reasoning, first, in cases that were found non-justiciable, and second, in cases in which justiciability was the focus of the judicial reasoning and that were found justiciable.
On a more abstract level, judges may be concerned that rulings in strategic climate litigation aiming at mitigation measures could interfere with the core task of elected politicians to prescribe general public policy choices.Footnote 13 According to a strict functional view of what separation of powers requires, judges may consider that they cannot decide that general policy choices are necessary and find the case non-justiciable. At the same time, the far-reaching interferences of the climate crisis with the enjoyment of human rights in a concrete and identifiable manner, not just in the future but also in the present, have become apparent. These interferences highlight the failure of the executive and the legislature to take measures that could be seen as adequate in light of established science.Footnote 14 Under a more relational conception of separation of powers, it is the task of the judiciary to prompt the other branches to carry out their constitutional mandates when they fail to do so.
Furthermore, even non-justiciable cases may have considerable political influence and contribute to the development of legal doctrine. Often, cases are found inadmissible on procedural grounds that serve the purpose of separation of powers but do not necessarily relate to whether judges could generally review climate policy. An example is standing requirements.Footnote 15 Our materials reveal that considerations of courts, which ultimately result in dismissals, may also include legal interpretations and doctrinal reasons that may lay the ground for more far-reaching climate policy. In light of the fact that the judiciary has a constitutional duty to ‘deliver justice’,Footnote 16 the logical minimum of reaction, when a case is brought, is declaring a case non-justiciable on specified grounds.
Juliana v United States is an example of a non-justiciable case from the United States.Footnote 17 In this case, a group of child plaintiffs alleged that several United States agencies had continued policies allowing for exploitation of fossil fuels, despite knowing of the hazards for more than fifty years. The plaintiffs claimed that the government thereby violated their constitutional rights, including a right to due process under the Fifth Amendment to a ‘climate system capable of sustaining human life’. The Ninth Circuit concluded in a 2-1 decision ‘reluctantly’ that the plaintiffs’ ‘impressive case for redress must be represented to the political branches of government, not the judiciary’.Footnote 18 In justifying the outcome, the court sided with a more functional conception of separation of powers.
Outside the United States, justiciability has been the focus of climate cases in Australia, Canada, New Zealand, and Pakistan.Footnote 19 Similarly, in the supporting judicial reasoning one can pinpoint elements of a more functional conception of separation of powers. In Sharma and Others v Minister for the Environment, eight young people, claiming to represent all people under 18, filed a putative class action in Australia’s Federal Court to block a coal project. They asserted that it would exacerbate climate change and harm young people in the future. The Federal Court of Australia established a new duty of care to avoid causing personal harm to children but declined to issue an injunction to force the minister to block the coal mine extension. The judge rejected the minister’s argument as to why alleged ‘policy reasons’ ought to have prevented the recognition of the duty of care. Contrary to the minister’s claims, the judge stated that the recognition of this duty would not interfere with the minister’s statutory task, nor necessarily render tortious any activity generating GHGs. Despite the Federal Court’s decision, the minister granted approval for the proposed mine expansion, and in March 2022 the Full Federal Court of Australia unanimously overturned the primary judge’s decision to impose a duty of care on the minister. The three judges had separate reasonings. Chief Justice Allsop found that the duty would require consideration of questions of policy ‘unsuitable for the judicial branch to resolve’.Footnote 20
By contrast, the Superior Court of Ontario in Canada found in Mathur et al v Her Majesty the Queen in Right of Ontario (preliminary decision) that ‘[t]he fact that the matter is complex, contentious or laden with social values does not mean that the courts can abdicate the responsibility vested in them by our Constitution to review legislation for Charter compliance when citizens challenge it. In such circumstances, it is the court’s obligation to decide the matter’.Footnote 21 This case emphasises the functional argument that it is the judiciary’s mandate and duty to apply constitutional law.
Equally grappling with issues of justiciability, Justice Mallon argued for the High Court of New Zealand in the case of Sarah Thomson v The Minister for Climate Change Issues that:
The courts have recognised the significance of the issue for the planet and its inhabitants and that those within the court’s jurisdiction are necessarily amongst all who are affected by inadequate efforts to respond to climate change. The various domestic courts have held they have a proper role to play in Government decision making on this topic, while emphasising that there are constitutional limits in how far that role may extend. The IPCC reports provide a factual basis on which decisions can be made. Remedies are fashioned to ensure appropriate action is taken while leaving the policy choices about the content of that action to the appropriate state body.Footnote 22
In its reasoning, the Court relied on a relational conception of separation of powers while stressing the importance of functional considerations. It reasoned more specifically that the ‘importance of the matter [climate change] for all and each of us warrants some scrutiny of the public power in addition to accountability through Parliament and the General Elections’, yet noted that there are ‘constitutional limits’ to the role of the judiciary, and that, if a ground of review ‘requires the Court to weigh public policies that are more appropriately weighed by those elected by the community’, it may be necessary for the Court to ‘defer to the elected officials’.Footnote 23
In the case of Michael John Smith v Fonterra Co-Operative Group Limited and Ors, the respondent companies are some of New Zealand’s largest GHG emitters (including from the dairy and meat industry).Footnote 24 In this case the issue was whether tort law could be used to seek wide-ranging private law remedies with respect to climate change. According to one cause of action, the defendants allegedly had a duty to cease contributing to climate change. The High Court found that there were ‘significant hurdles’ for Smith in persuading the Court that this new duty should be recognised but determined that the relevant issues should be explored at a trial.Footnote 25 Invoking a more functional conception of separation of powers, the High Court ultimately decided against any regulation of policy content. It argued that ‘[t]he Courts are poorly equipped to deal with the issues which Mr. Smith seeks to raise. This country’s response to climate change involves policy formation, value judgments, risk analysis, trade-offs and distributional outcomes. These matters are well outside the normal realms of civil litigation’.Footnote 26 It further explained that ‘[i]f the Courts were to reach different conclusions than Parliament, there could be inconsistent and different net zero emission targets and different ways of dealing with the problems thrown up by climate change. That would be highly undesirable and would put significant emitters in a quandary’.Footnote 27
6.3.2 Recognise a Right or Duty
Separation of powers concerns remain equally present after judges have found a case justiciable and recognise a legal right or duty – positive or negative.Footnote 28 Recognising a legal right or duty is an important step in the judicial process including in those cases that determine a particular obligation, with notable examples being Urgenda, VZW Klimaatzaak v Kingdom of Belgium and Others, Future Generations v Ministry of the Environment and Others, Neubauer and Others v Germany, Notre Affaire à Tous and Others v France, and Shrestha v Office of the Prime Minister and Others.Footnote 29 However, a court may also stop at this level of identifying rights or duties of the parties, for example if it does not establish a breach. These rulings may have a symbolic value in political discourse or obligate the executive or legislative branches to take these rights or duties into consideration.
An example of a case with high constitutional and symbolic value is Neubauer.Footnote 30 In this case, the German Federal Constitutional Court recognised that the German State had a constitutional duty to address the harm posed by climate change in order to protect the constitutional rights to life and health, protected under the German Constitution and the ECHR, ‘by taking steps which […] contribute to stopping human-induced global warming and limiting the ensuing climate change’.Footnote 31
Urgenda confirmed in three different instances that climate change fell within the scope of protection of the rights to life and to private and family life, under Articles 2 and 8 ECHR.Footnote 32 It also confirmed that the State is subject to a duty of care in tort, which is interpreted in light of these human rights provisions. While the District Court reasoned that the State’s duty of care in tort, as an open-textured norm, must be interpreted in a manner that is, so far as this is possible, consistent with its obligations under international law.Footnote 33 The Dutch government appealed the decision, and Urgenda filed a cross-appeal with respect to the ECHR claim. In late 2018, the Court of Appeal upheld the decision of the District Court, while permitting Urgenda to make a claim under the ECHR. The Dutch government appealed to the Dutch Supreme Court, which affirmed in December 2019 the order of the District Court and the Court of Appeal’s admission of Urgenda’s claim under the ECHR. The Supreme Court interpreted the Netherlands’ obligations under Articles 2 and 8 ECHR by drawing on non-binding commitments of the Dutch State under the United Nations Framework Convention on Climate Change (UNFCCC), soft law sources such as Conference of the Parties’ (COP) decisions, and ‘scientific insights and generally accepted standards’.Footnote 34
Building on Urgenda, the case of Milieudefensie et al v Royal Dutch Shell plc extends the duty of care under tort law (Article 6:162 of the Dutch Civil Code informed by Articles 2 and 8 ECHR) to private companies.Footnote 35 The District Court accepted that given the Paris Agreement’s goals and the scientific evidence regarding the dangers of climate change, Shell has a duty of care to take action to reduce its GHG emissions.
6.3.3 Establish a Breach
The next stage at which separation of powers concerns arise is when courts consider whether they recognise a breach, even if that does not necessarily imply that the court orders the defendant to take action. Again, even if such rulings may not prescribe a specific enforceable obligation, they may have high symbolic value in the political discourse and establish important and potentially replicable interpretations of the law.
In VZW Klimaatzaak, the Brussels Court of First Instance found a duty and a breach of that duty, but did not establish an enforceable obligation. The Court found the federal state and the three regions jointly and individually in breach of their duties of care for failing to enact good climate governance. However, the Court declined to issue an injunction ordering the government to set the specific emission reduction targets requested by the plaintiffs. The Court found that the separation of powers doctrine limited the Court’s ability to set such targets and that doing so would contravene legislative or administrative authority. On appeal, this aspect of the decision was overturned – with the Court of Appeal issuing an order requiring the federal state and regions to adhere to a more ambitious 2030 mitigation target.Footnote 36
There are various other examples where separation of powers has not proven to be a barrier in establishing duty and breach. In the Future Generations case, the Supreme Court of Colombia found that the State’s failure to prevent deforestation, which exacerbates climate change, violated the claimants’ constitutional rights of life, health, and minimum subsistence: ‘It is clear that despite several international commitments, legislation, and jurisprudence on the subject, the Colombian State has not efficiently tackled the problem of deforestation in the Amazon’.Footnote 37
An example from Nepal is the Shrestha case.Footnote 38 In this case, the Supreme Court of Nepal determined that the State’s failure to adopt a comprehensive law on climate change and to adequately address the existing impacts of climate change violated the right to life and to live with dignity, as well as the right to a healthy environment under the Nepalese Constitution.Footnote 39
In Neubauer, the German Federal Constitutional Court found that the duty to take ‘measures that help to limit anthropogenic global warming and the associated climate change’ applies despite ‘[t]he fact that the German State is incapable of halting climate change on its own’.Footnote 40 The Court found that this requires the legislature to adopt legislation to reduce GHG emissions in a ‘sufficiently prudent manner’, without ‘offload[ing] reduction burdens onto the future’.Footnote 41 The Court established a breach of the rights protected under the German Constitution.Footnote 42
The Municipal Court of Prague found in the first instance in the Klimatická žaloba case that the ‘far-reaching effects’ of climate change posed a threat to the right to a favourable environment, which is protected under the constitution.Footnote 43 The constitutional duty to protect human rights thus required the government to develop specific and comprehensive mitigation measures ‘without undue delay’.Footnote 44 The court found that the government was not doing enough to adequately reduce emissions before 2030, and thus violated its duty to protect human rights. It concluded that ‘[t]he defendants’ failure to act deprived the applicants of their right to a favourable environment’.Footnote 45
In Pakistan, the High Court of Lahore held in Leghari v Federation of Pakistan that the State’s failure to address the impacts of climate change within the country violated the plaintiff’s right to life as well as the right to a healthy environment (among other rights).Footnote 46 In this case, Ashgar Leghari, a Pakistani farmer, argued that the government had failed to meet its climate change mitigation and adaptation targets, which had resulted in immediate impacts on the water, food, and energy security of Pakistan in a way that interfered with his fundamental right to life. The Court ruled in response that ‘the delay and lethargy of the State in implementing the Framework offends the fundamental rights of the citizens which need to be safeguarded’.Footnote 47 When establishing the breach, the Court argued that fundamental rights must be guided by the constitutional values of democracy, equality, and social, economic, and political justice, as well as the international environmental principles of sustainable development, the precautionary principle, intergenerational and intragenerational equity, and the doctrine of public trust.
Equally, in Urgenda, the first successful strategic climate case aimed at general emission reduction, the Dutch Supreme Court concluded that Dutch climate mitigation efforts were not consistent with IPCC science and the government thus violated its obligation to protect under Articles 2 and 8 of the ECHR.Footnote 48
6.3.4 Determine an Enforceable Obligation
Finally, a court may impose an enforceable obligation on the parties to the case. These enforceable obligations may be procedural or substantive.Footnote 49 From a separation of powers perspective, determining procedural obligations may prima facie be seen as less controversial than determining substantive ones. The principled reasoning of the Supreme Court in Nature and Youth Norway and others v Norway may serve as an illustration. The case concerned the validity of a royal decree of 2016 to grant ten petroleum explorations licences in the southern and south-eastern parts of the Barents Sea. The Court did not rule in favour of the plaintiffs but provided extensive reflections in relation to separation of powers. It held that ‘decisions involving basic environmental issues often require a political balancing of interests and broader priorities’.Footnote 50 Therefore, the Court stated, ‘[d]emocracy considerations […] suggest that such decisions should be taken by popularly elected bodies, and not by the courts’.Footnote 51 Yet, the Court also noted that democratic considerations have less bearing in regard to procedural duties, noting specifically that ‘restraint is less required when it comes to assessing the procedure’ as ‘in reviewing the political balancing of interests’.Footnote 52
We treat procedural and substantive obligations in separate subsections later on. We should add, however, that the dividing line between procedural and substantive obligations is at times difficult to draw. A case in point is Neubauer, which primarily established procedural obligations but also determined that the German Constitution entails a substantive constitutional obligation to establish a law with a zero-emission target for 2050. Similarly, in Friends of the Irish Environment CLG v The Government of Ireland, Ireland and The Attorney General, the Supreme Court of Ireland ordered the Irish government to return to the drawing board and develop a new National Mitigation Plan, which is a procedural obligation aiming for a substantive outcome.Footnote 53
6.3.4.1 Procedural Obligations
Procedural obligations concern processes for governing climate policy without directly regulating the content of such policy. While these rulings do not intervene substantively in the decisions of the political branches, procedural remedies may still have an impact on climate policy as imposed institutional structures change the conditions for policy-making.
For example, in Save Lamu et al v National Environmental Management Authority and Amu Power Co Ltd, a community-based organisation representing Lamu County and other individual claimants challenged the issuance of a licence by the Kenyan National Environmental Management Authority (NEMA) to a power company for the construction of the first coal-fired power plant in Kenya.Footnote 54 The claimants argued that the Kenyan NEMA failed to conduct a proper Environmental Impact Assessment (EIA) and therefore contributed to the adverse effects on human health and biodiversity caused by climate change. The Tribunal set aside the licence issuance and decided that the Kenyan NEMA had violated the EIA regulations by granting it without proper and meaningful public participation in the process. It stated that ‘the judicial function of the Tribunal is to examine whether there was compliance with statute. In the present appeal, the procedure was not followed and the process was seriously flawed’.Footnote 55
Similarly, Neubauer established a procedural obligation requiring the legislature to return to the drawing board and adopt national legislation in line with constitutionally protected human rights, including for the future, that is, the period after 2030. Neubauer did not articulate a particular substantive reduction obligation. Arguably, the latter reflects a degree of judicial self-restraint that relates to the German Federal Constitutional Court’s self-conception of the role of the judiciary in relation to the other branches. The Court expresses this when emphasising that it is for the legislature to specify the (substantive) emission reduction objectives within what is legal in light of the requirement of climate protection under Article 20(a) GG.Footnote 56 The Neubauer case is recurrent in our later discussions on emerging best practice and replicability.
6.3.4.2 Substantive Obligations
All else being equal, rulings determining substantive obligations usually remain more controversial from a separation of powers perspective. Still, some courts proceed to such measures. Such cases exist from Ireland, the Netherlands, France, and Colombia.Footnote 57 Among these, only the Irish case relied on existing parliamentary legislation.
In Friends of the Irish Environment CLG, the separation of powers was a key issue. As in the Neubauer case, the distinction between a procedural and substantive obligation can be difficult to draw, as the final ruling required a more specific National Mitigation Plan. The High Court ruled against the plaintiffs, holding, inter alia, that the State must be given a broad margin of discretion in determining its climate policies, with reference to the separation of powers and the nature, extent, and wording of the statutory obligations in play.Footnote 58 In comparison to the High Court, the conception of separation of powers upheld by the Supreme Court can be seen as more relational, as it concluded that ‘the issues are justiciable and do not amount to an impermissible impingement by the courts into areas of policy’.Footnote 59 Yet, functional separation remained important, as the obligation established by the Court ultimately relied on national legislation, namely the 2015 Climate Action and Low Carbon Development Act.
Urgenda, which drew on Articles 2 and 8 of the ECHR, constitutes a different example of where courts imposed a specific substantive obligation (25% emission reduction). In the Urgenda case, the Court insisted that there remained a legitimate role for the judiciary in determining ‘whether the measures taken by the State are too little in view of what is clearly the lower limit of its share in the measures to be taken worldwide against dangerous climate change’.Footnote 60 The Court concluded its judgment by outlining why the order made was appropriate in light of the separation of powers, contrary to the State’s argument that the order constituted an impermissible ‘order to create legislation’.Footnote 61 The Urgenda case also recurs in our later discussions on emerging best practice and replicability.
The level of detail in imposing enforceable obligations on the State seems crucial. Courts appear willing to impose even substantive obligations but reserve the details of implementation to the State. This is in line with separation of powers considerations that reserve the making of general policy to the legislature. Examples that illustrate this emerging trend of climate rulings imposing general substantive obligations that reserve further (implementation) details to the policy-maker are Urgenda and Notre Affaire a Tous. In the latter case, the Administrative Court explicitly acknowledged that the government must be granted a wide margin of discretion when implementing a court order pertaining to GHG emissions targets, while this margin of discretion does not as such prevent the judiciary from ordering the government to adopt stronger climate mitigation measures:
In the circumstances of this case, it is appropriate to order the Prime Minister and the competent ministers to take all the necessary sectoral measures to compensate for the damage up to the uncompensated share of greenhouse gas emissions under the first carbon budget […]. It is appropriate, as has been said, to order the enactment of such measures within a sufficiently short period of time in order to prevent any worsening of that damage. In the context of the present case, the specific measures to make reparation for the damage may take various forms and consequently express choices which are within the Government’s discretion.Footnote 62
6.4 Emerging Best Practice
Separation of powers has been a central issue in the relatively short but dynamic lifespan of climate litigation. To a certain extent, identifying specific best practices around separation of powers is rendered difficult by the wide range of rules and principles that protect or interact with separation of powers very differently in various legal orders. In all climate litigation, the domestic legal order frames the role of the judiciary and determines what judges can and should do. Nevertheless, emerging best practices regarding the separation of powers can be identified with respect to several issues.
6.4.1 Role of the Judiciary in Applying the Law
The first emerging best practice results from how judges understand their own role vis-à-vis the other branches of government and provide arguments for this understanding. Several courts have emphasised that it is the role of the judiciary to apply the law. In other words, when the legislature has adopted a national law this mandates the judiciary to ensure that the legally binding commitments made under that national law are given effect.Footnote 63 They also generally emphasised the necessity of judicial review of executive conduct with respect to climate change legislation.Footnote 64 This exercise of judicial review renders matters which once might have been reserved to ‘politics’ a matter of lawful conduct.
DG Khan Cement Company v Government of Punjab is illustrative of this practice. In that case, the Supreme Court of Pakistan found that the judiciary is not only able but actually required to adjudicate cases that can help address the dangerous consequences of climate change.Footnote 65 The Court argued that ‘[t]his Court and the Courts around the globe have a role to play in reducing the effects of climate change for our generation and for the generations to come. Through our pen and jurisprudential fiat, we need to decolonize our future generations from the wrath of climate change, by upholding climate justice at all times’.Footnote 66
In Germany, which has a constitutional court that enjoys strong review powers over general laws and exceptionally high public support, including in politics and academia, the judiciary is formally in a position to directly restrain politics (legal constitutionalism). In the Neubauer case, a group of youth filed a legal challenge against the Federal Climate Protection Act arguing that the target of reducing GHGs 55 per cent by 2030 from 1990 levels was insufficient. The German Federal Constitutional Court struck down parts of that Act, which is a general federal law, as incompatible with fundamental rights protected under the German Constitution.
For its reasoning, the Court could rely on constitutional provisions that limit the scope for political decision-making to take measures to protect the environment or not. The Court found that Article 20a of the German Constitution obliges the legislature to protect the climate and aim towards achieving climate neutrality. Further, the Court stated that Article 20a ‘is a justiciable legal norm that is intended to bind the political process in favour of ecological concerns, also with a view to the future generations that are particularly affected’. Accepting arguments that the legislature must follow a carbon budget approach to limit warming to well below 2°C, and, if possible, to 1.5°C, the Court found that the legislature had not proportionally distributed the budget between current and future generations. Because ‘one generation must not be allowed to consume large parts of the CO2 budget under a comparatively mild reduction burden if this would at the same time leave future generations with a radical reduction burden and expose their lives to serious losses of freedom’, the Court ordered the legislature to set clear provisions for reduction targets from 2031 onward by the end of 2022.Footnote 67
An example from Canada is Mathur et al. Although judicial review is relatively weak in Canada, the Superior Court of Ontario explained that the Constitution ‘requires’ the Court to decide a climate case, even if ‘the matter is complex, contentious and laden with social values’.Footnote 68
In the Netherlands, by contrast with Germany and more like Canada, the judiciary is in a comparatively weak position vis-à-vis the political branches and may not review general laws in light of national constitutional rules or principles. However, this did not stop the courts in three instances (District Court, Court of Appeals, and Supreme Court) from ruling in favour of Urgenda, determining that, by failing to reduce GHG emissions by at least 25 per cent by end-2020, the Dutch government was acting unlawfully in contravention of its duty of care. In the higher two instances, the courts relied on Articles 2 and 8 of the ECHR, which enjoy constitutional status and direct enforceability in the Dutch system. Directly addressing the matter of separation of powers, the Dutch Supreme Court concluded
[D]ecision-making on the reduction of greenhouse gas emissions is a power of the government and parliament. They have a large degree of discretion to make the political considerations that are necessary in this regard. It is up to the courts to decide whether, in availing themselves of this discretion, the government and parliament have remained within the limits of the law by which they are bound.Footnote 69
In respect of a functional separation of powers, the Dutch Supreme Court insisted that it was a legitimate function of the judiciary, as required by the rule of law, to determine whether the State was complying with its legal obligations, and had ‘remained within the limits of the law by which they are bound’.Footnote 70 The Court argued further that ‘this order does not amount to an order to take specific legislative measures, but leaves the State free to choose the measures to be taken in order to achieve a 25% reduction in greenhouse gas emissions by 2020’.Footnote 71
Notably, this was the first decision by any court ordering a State to limit GHG emissions for reasons other than statutory mandates. The Court pointed to ‘the severity of the consequences of climate change and the great risk of climate change occurring’.Footnote 72 The functional separation of powers arguments put forth by the defendant against justiciability, for example, were rejected ‘also because the State violates human rights’.Footnote 73
6.4.2 Giving Effect to International Norms
Judges have regularly relied on international law to substantiate their reasoning, either because no national climate legislation existedFootnote 74 or because international law further strengthened the case as it illustrated the objectives for which the national climate legislation had been adopted.Footnote 75
France is an illustrative example of a jurisdiction in which several courts have emphasised the relevance of a State’s previous commitments to an international legal framework that acknowledges and aims to fight the climate emergency. In Notre Affaire à Tous, for example, the Administrative Court of Paris explained in 2021 that, by ratifying the UNFCCC and the Paris Agreement, the French government recognised ‘an “emergency” to combat current climate change’ and ‘recognised its capacity to act effectively on this phenomenon in order to limit its causes and mitigate its harmful consequences’.Footnote 76 One year earlier, in Commune de Grande-Synthe v France, the Supreme French Administrative Court had established the pre-eminence of the UNFCCC and the Paris Agreement in the context of domestic mitigation action, explaining that the treaties ‘must be taken into account in the interpretation of provisions of national law’ aimed at reducing GHG emissions.Footnote 77
The status of international law within the domestic legal order is highly relevant to judges’ considerations of a State’s international commitments. When courts are asked to determine the relevance and meaning of international law in domestic proceedings, they usually enjoy additional discretion. They act as gatekeepers determining which international norms meet the domestic requirements of enjoying direct effect and what the relationship between domestic and international norms is. Hence, reliance on international norms as the basis for a ruling rather than, for example, national constitutional law increases the power of the judiciary vis-à-vis the other branches. At the same time, the legislature does not have the same powers over the creation of international norms as it has over national laws, even if it may be formally involved in the ratification of international agreements. Thus, giving effect to international norms, in particular in relation to national laws, may be prima facie read as disempowering parliament. Separation of powers concerns may increase if decisions rely predominantly on international norms rather than national laws.
Very different constitutional framework conditions establish very different conceptions of separation of powers, for example that the judiciary is given the explicit mandate to review the constitutionality of general laws (Germany) or not (Netherlands). However, this does not exclude replicable best practices from emerging, such as reliance on non-binding norms of international law or (repeated) political commitments to substantiate a particular mitigation obligation.
6.4.3 A Matter of Protecting Human Rights
Where there is a right, there is a remedy.Footnote 78 The right to a remedy when one’s rights are violated lies at the heart of the rule of law and separation of powers. Generally, human rights are seen as the prime example of rights for which the judiciary must offer remedies to enforce them against the executive and the legislature. In line with this, the Dutch Supreme Court, followed by several other national courts, emphasised that it is for the courts to ensure that the other branches do not overstep the law when exercising their political discretion, particularly when human rights are at stake.Footnote 79 When assessing the scope of judicial scrutiny in the context of human rights protection, the Municipal Court of Prague in its first instance decision in Klimatická žaloba stated that ‘[i]n accordance with the precautionary principle, persons have the right to be concerned about the quality of their environment and do not have to wait until the climatic conditions are so unfavourable that they do not allow the fulfilment of their basic needs of life’.Footnote 80 This line of reasoning appears to broaden the protection of human rights by establishing that persons may enforce their rights before a(n irreversible) situation of severe human rights violation has occurred. This is particularly meaningful in the context of the climate emergency, which is a cumulative global common action problem, that is, every ton of CO2 emitted anywhere in the world creates an irreversible temperature increase that changes life on Earth.
Separation of powers concerns in human rights adjudication play out in different ways. On the one hand, judges may consider that separation of powers weighs in favour of exercising judicial review because (human) rights protection at the end of the legislative cycle lies at the centre of their role within a democratic system.Footnote 81 On the other hand, human rights adjudication is seen as a field where judges are necessarily empowered vis-à-vis the other branches because judges need to give meaning to open-textured norms and balance interests.Footnote 82 This could support an argument in favour of more judicial restraint. At the same time, it appears relevant whether the rights norms that the court relies on were produced with the democratic legitimation of the domestic law – or even constitution-making process – or whether they emerged from international treaty-making.Footnote 83 In the case of the latter, additional considerations relating to the empowerment of the executive in external relations come into play.
Perhaps the most innovative decision so far has been the decision granted by the High Court of Lahore decision in the Leghari case, as it resulted in procedural obligations for a breach of substantive duties.Footnote 84 The Court created a Climate Change Commission composed of representatives of key ministries, NGOs, and technical experts to monitor the government’s progress in terms of its own climate change policy and implementation framework. In other words, while refraining from imposing higher substantive targets, the Court established the institutional framework to oversee the execution of the State’s existing policies.
Another highly relevant point on the judicial mandate to protect human rights was made by the Superior Court of Quebec, when it noted in ENvironnement JEUnesse that ‘in the case of an alleged violation of the rights guaranteed by the Canadian Charter, a court should not decline jurisdiction on the basis of the doctrine of justiciability’.Footnote 85
The need to exercise judicial review over executive but also legislative action has been particularly recognised as a result of the growing scientific evidence of the ubiquity and intensity of interferences with human rights caused by the climate crisis. This connects to the widely shared understanding that protecting the rights of individuals, including large numbers from foreseeable harm in the future, is the core task of courts under separated powers.
6.4.4 Developing Legally Enforceable Norms from Best Available Science
The Dutch Supreme Court in Urgenda relied heavily on the IPCC reports to argue that ‘objective’ standards exist against which to review the State’s conduct.Footnote 86 This highlights the role of courts as independent fora, where impartial judges need to be convinced, not only of what the law is and what legal obligations may flow from it within the particular case but also of the climate science that should underpin any political and judicial decision-making on climate issues.
Generally, many courts have heavily relied on climate science for their reasoning. Examples include the case of Friends of the Irish Environment, in which the Irish Supreme Court found that the scientific understanding of the ‘safe temperature rise target’ in Article 2.1(a) of the Paris Agreement has increasingly gravitated towards ‘a lower figure […] in the region of 1.5°C’, as scientific knowledge has developed since the Paris Agreement.Footnote 87 Furthermore, the Administrative Court of Paris recalled in Notre Affaire à Tous the IPCC’s findings in the Special Report on 1.5°C (2018) and concluded that ‘a warming of 2°C rather than 1.5°C would seriously increase these various phenomena and their consequences’.Footnote 88 Similarly, in Klimaatzaak, the Court of Appeal pointed out scientific evidence regarding the risks of exceeding the threshold of 1.5°CFootnote 89 and, in Milieudefensie, the Hague District Court converged towards the same conclusion, establishing that ‘in the last couple of years, further insight has shown that a safe temperature increase should not exceed 1.5°C’.Footnote 90
One may conclude that climate litigation necessarily brings science back into the debate, ideally in a rational, non-interest-driven, and fact-checking fashion. By relying on the IPCC reports as reflecting the best available science established in a transparent and inclusive process that vouches for its scientific impartiality, judges vest climate science in the societal debate with legal authority.Footnote 91 In all climate litigation cases, judges are required to establish the relevant facts underpinning the claims of the parties on what reduction obligations flow from the law. While this point may prima facie appear only indirectly linked to separation of powers, it reinforces the function of the judiciary to rationalise societal conflict pursuant to pre-established procedural rules and, by doing so, offers a procedural mechanism of systematically debunking scientific myths that lacks in the less formal political debate, for example, in parliament.
Judges have also justified why climate issues are justiciable irrespective of the complex science involved, the alleged uncertainties under the scientific models sketching the probable impacts of rising emissions, or the numerous interests affected by the impacts and mitigation measures. On the first aspect, the German Federal Constitutional Court acknowledged in Neubauer that, while there are several scientific methods for determining a State’s necessary emissions reductions to hold global warming to a particular temperature limit, all of which entail uncertainties, ‘this does not make it permissible under constitutional law for Germany’s required contribution to be chosen arbitrarily. Nor can a specific constitutional obligation to reduce CO2 emissions be invalidated by simply arguing that Germany’s share of the reduction burden and of the global CO2 budget are impossible to determine’.Footnote 92 Similarly, the Hague District Court established in Milieudefensie that while ‘no one single [reduction] pathway is the measure of all things on a global scale’, there nevertheless exists ‘widely endorsed consensus’ regarding the minimum emissions reductions that are required to avert dangerous climate change.Footnote 93
It should be added that judges must often decide based on incomplete knowledge and rely on science to substantiate their fact finding.Footnote 94 This is not different in climate cases; yet, increasingly detailed science on the impacts of climate change are seen by judges as providing them with the necessary knowledge to give rulings.
6.5 Replicability
Different courts around the world have interpreted the issue of separation of powers in climate litigation in very distinct ways. Ultimately, the extent to which judicial reasoning relating to separation of powers can be replicated depends on the similarities and differences of the relevant legal elements that determine the national conception of separation of powers. In principle, successful litigation requiring a government to do or not do something in relation to climate change is more likely to be observed in countries that have constitutional or national legal provisions protecting a healthy environment and/or climate.Footnote 95 The existence of national climate framework laws with clear targets, accountability mechanisms, and, in some cases, an explicit mandate for courts to review the implementation of climate laws also provide clarity in ensuring judicial oversight.Footnote 96
Once the legislature has exercised its core function and adopted a law, the court is not supposed to apply and interpret the law. As pointed out by the Brazilian Superior Court of Justice, in countries that have legislation protecting the environment and/or the climate, ‘the judge does not create obligations to protect the environment. Instead, they emanate from the law once they have been examined by the Legislative Branch. For this reason, we do not require activist judges, because activism is found within the law and the constitutional text’.Footnote 97
All four stages of adjudication have a potential for replicability. Even the most far-reaching decisions (level 4) have already been replicated, and, notably, the interpretations used in the Urgenda decision have been discussed at length in other cases in the Netherlands and beyond. ‘Urgenda-type’ cases have been replicated with the aim of holding governments accountable for reducing GHG emissions in Canada, the United States, Norway, South Korea, Ireland, Colombia, and other countries. The Urgenda case was also adapted and replicated as a tort law case in Milieudefensie – another decision that could, in principle, be replicated in other jurisdictions with tort law. Furthermore, decisions from other jurisdictions, while not binding, may provide and have provided persuasive arguments.Footnote 98 This practice on the part of domestic courts makes explicit what has been termed the ‘transnational dimensions of the global climate change case law’.Footnote 99
Even the far-reaching orders of Mansoor Ali Shah in the Leghari case were arguably replicated in the Shrestha case. This type of decision could potentially be further replicable in jurisdictions where there is a constitutional right to life and a judicial willingness to interpret this right to life as including a right to a healthy environment, a right to clean air, and/or other similar rights enshrined in the country’s constitution or human rights law.Footnote 100
While the different expressions of the idea of separation of powers vary tremendously, we see a trend that the justiciability of climate cases against public authorities, as well as the establishment of enforceable obligations, are becoming more widely accepted.Footnote 101 Climate litigation has a strong transnational dimension,Footnote 102 which strengthens the potential for replicability. It can further be expected that climate cases will continue being brought and hence that courts must continue to engage with climate issues under the conditions of an unfolding global climate emergency.
6.6 Conclusion
The central aim of the study has been to identify emerging best practice in relation to how separation of powers has been addressed in climate litigation across a wide variety of jurisdictions and doctrinal contexts. Our account suggests that, while judicial engagement is likely to be diverse, the decisions can be understood in a more systematic way. We have identified four stages of adjudication, ranging in intensity from low to high – justiciability, recognising a right or duty, establishing a breach, and determining enforceable obligations (procedural and/or substantive). Within one and the same case, a lower level of intensity indicates a more functional conception of separation of powers, while a higher level of intensity indicates a more relational conception of separation of powers. Further, we have identified four areas of emerging best practice in progressive climate rulings: the role of the judiciary, giving effect to international norms, human rights protection, and developing norms from science.
Once a climate case is filed, the decision of a court to declare the case justiciable opens a number of avenues for what the court can do and how far it can go within its mandate and in line with the separation of powers. Judges have a choice of establishing a lower or higher level of intervention. Such a choice is bound by a judgment about the institutional competence of the courts. Surely, courts are most likely to respond where the legislature has acknowledged a duty of the State and/or of corporations to act. But judges are also sensitive to the different ways in which separation of powers goals are implicated in a policy domain,Footnote 103 as well as to the severity of the problem that they are faced with.
At the same time, climate litigation is a dynamic field, characterised as a ‘transnational’ phenomenon. As Peel and Lin observe, advocates see their climate litigation work as contributing to the global effort to address climate change, and the cases are often accompanied by campaigns that seek to appeal to an international audience.Footnote 104 Litigants take notice of what cases are being filed and what decisions are given in other jurisdictions, and that knowledge often informs the cases they bring. Similarly, judges are following the decisions given by other courts across borders. The Urgenda decision has already been cited in judgements by courts in several other climate cases, including cases in Australia, Ireland, and Germany. Bold decisions elsewhere therefore can give additional confidence for judges deciding new cases presented before them.
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