According to a recent report published by the United Nations Environment Programme (UNEP), climate litigation has doubled worldwide in recent years and has become an important and increasingly popular tool for tackling the climate crisis.
Furthermore, the Intergovernmental Panel on Climate Change (IPCC) noted in its sixth report that there is now "a growing academic consensus suggesting that climate litigation has become a powerful force in climate governance".
Climate litigation is indeed an integral part of the activists' toolkit for promoting climate action. And it is children, youth, indigenous peoples, civil society organizations, women and local communities who have taken the lead in bringing these legal actions.
Climate litigation is, at its core, strategic litigation, which means it seeks far-reaching changes in society that go beyond a specific case. Typically, this is achieved by promoting the protection of rights or changes in public policy.
Such litigations hold governments, public authorities, companies and other non-state actors accountable in court for the climate crisis and oblige them, among other things, to adopt, implement and gradually increase concrete measures to reduce their emissions and mitigate the impacts of the climate crisis.
Over a year ago, AIDA launched the Climate Litigation Platform for Latin America and the Caribbean, a reference website that collects cases of climate litigation in the region. The goal is to promote the exchange of diverse experiences in order to strengthen cases in favor of necessary structural changes.
The Platform contains systematized and updated information on litigations filed before any jurisdictional authority (judicial, administrative, international or autonomous). It contains the arguments supporting the cases, related to the legal obligations of States and other actors in the face of the climate crisis.
It also contains cases that, while not directly related to the climate crisis, contribute to the pursuit of climate justice on the continent.
And this is where confusion and questions arise: what makes a litigation a climate litigation?
The truth is that there is no accepted definition to determine which litigation is climate and which is not. It is a relatively new niche in the field of environmental law and -as with many things in life, it has blurred edges. The fact is that our planet is suffering from multiple crises, all of which are interconnected and closely linked to environmental degradation. In this sense, it is almost always possible to link environmental litigations, in some way or another, to the changing climate.
In any case, and with the aim of stimulating a discussion on this subject, we venture here to reflect on possible definitions that shed light and allow us to delimit this concept that is gaining so much relevance.
One way to approach the question of what makes a litigation a climate litigation is to say that a climate litigation is any litigation that contains arguments related to the climate crisis in its claim or in the sentence that resolves it.
Another approach concerns the purpose of the litigation, whereby to say that climate litigation is any litigation relating to climate action. It implies a high complexity and a wide variety of cases, many of which are intertwined. Under this definition, for example, there would be cases that:
As can be seen, the variety of cases that can be labeled as climate litigation is enormous and almost as great as the creativity of the people who are implementing this tool.
What is interesting is that- despite being a fairly new concept - climate litigation builds on itself. The longer we use it, the more the courts will be involved in examining the obligations of companies and states towards climate action, and the more we will generate more useful jurisprudence, capacities and experiences to move forward.
National and international law is strengthened by the use of climate litigation and it is important to keep it alive and growing -and to link it to the responsibility of States and corporations to address the climate crisis- on the basis of the universal human right to a healthy environment.
It is important to clarify that strategic litigation -whether climate or environmental- is challenging, complex and expensive. It requires time, resources, skills and commitment. The decision to initiate a climate litigation is not one to be taken lightly. It is often not the best option to achieve a goal.
But we can say -with certainty- that it is a key tool in climate action, that has allowed the voices of highly vulnerable and often invisible people and groups to be heard in the forums where decisions are made, where justice is done. It is also the last instance of play in the institutional and legal sphere.