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By Allen Campbell, JD, MBA

Over 1500 cases have been filed in courts around the world seeking relief from climate change. These cases have been based on various legal theories. A recent, highly unusual theory is that such rights are grounded in a state’s constitution. This constitutional theory has been successfully argued in four noteworthy cases, one in Montana, the second in the Netherlands, the third in Colombia, and the fourth in Brazil.

The Montana case is Held v. State of Montana, brought by 16 young plaintiffs – ages five to 22 – who sued the state, arguing that the government was violating their right to a clean and healthy environment, and that their generation will bear a greater burden from climate change than the adults causing the damage. District Court Judge Kathy Seeley found the policy the state uses in evaluating requests for fossil fuel permits — which does not allow agencies to evaluate the effects of greenhouse gas emissions — is unconstitutional. (Gov. Gianforte had signed a law that bars regulators like the Montana Department of Environmental Quality from looking at the climate impacts of proposed projects that should have environmental reviews, like coal mines or power plants.) She wrote in the ruling that “Montana’s emissions and climate change have been proven to be a substantial factor in causing climate impacts to Montana’s environment and harm and injury” to the youth. However, Judge Seeley’s remedy is quite cautious: she ruled that it is job of the state legislature to determine how to bring the policy into compliance. In a conservative, fossil fuel-friendly state, political forces will likely overwhelm the forces for change, at least in the short term. The precedential value of the Held case may be limited, because Montana has a unique Constitutional provision: “The state *** shall maintain and improve a clean and healthful environment in Montana for present and future generations.”

The Dutch case is Urgenda  Foundation v. The State of the Netherlands. The court ruled that the Dutch government has a constitutional duty to protect its citizens from climate change. The Dutch government was ordered to take more ambitious action by reducing carbon emissions by at least 25 percent by 2020. In its 2018 decision, the High Court ruled that “the State is acting unlawfully (in contravention of the duty of care under Articles 2 and 8 [European Convention on Human Rights]) by failing to pursue a more ambitious reduction as of end-2020”, and that the State should reduce emissions by at least 25 percent by the end of 2020.

The Brazilian case is Partido Socialista Brasileiro (PSB), Partido Socialismo e Liberdade (PSOL), Partido dos Trabalhadores (PT) e Rede Sustentabilidade v. União Federal (PSB et al. v. Brazil). The complaint alleged that the executive branch of the Federal Union of Brazil had unlawfully disregarded a mandate of the legislative branch intended to protect the environment by means of a Climate Fund. On June 30, 2022, the Brazilian Supreme Court ruled that the executive branch could not ignore that mandate. Rather, the executive branch had a constitutional duty to execute and allocate the funds of the Climate Fund to mitigate climate change, based on both the separation of powers and the constitutional right to a healthy environment. The court further found that the judiciary, in turn, must act to avoid the regression of environmental protection. Interestingly, the Supreme Court said that environmental law treaties constitute a particular type of human rights treaty, which enjoy “supranational” status. This “supralegality” of human rights treaties means that they are above “regular” laws in the legal hierarchy. Accordingly, any Brazilian law or decree that contradicts the Paris Agreement may be invalidated. Any action or omission contrary to this protection is a direct violation of the Constitution and human rights. The constitutional duty to allocate the funds effectively means that there is a duty to mitigate climate change considering the international commitments under the climate change framework.

The fourth case is STC 4360-2018, in which Colombia’s highest court ordered the government to take urgent action to protect its Amazon rainforest and stem rising deforestation. “It is clear, despite numerous international commitments, regulations *** that the Colombian state has not efficiently addressed the problem of deforestation in the Amazon,” the supreme court said. The plaintiffs – all young people – had alleged that the government’s failure to stop the destruction of the Amazon jeopardized their futures and violated their constitutional rights to a healthy environment, life, food and water. The Court agreed. Even more startling, perhaps, is that the Court recognized the Colombian Amazon as an entity having rights: “for the sake of protecting this vital ecosystem for the future of the planet,” the Court said it would “recognize the Colombian Amazon as an entity, subject of rights, and beneficiary of the protection, conservation, maintenance and restoration” that national and local governments are obligated to provide under Colombia’s Constitution. Local experts believe this means that when there is danger to the integrity of the Amazon, citizens can go to court to demand its protection.

Why This Matters

  • The four cases discussed above articulate novel constitutional bases for climate/environmental litigation.
  • All around the world, in climate/environmental cases, plaintiffs are asserting novel, creative legal theories; some courts are receptive, others are not.
  • Although climate change may not always be the central issue in a case, judges are increasingly being asked to deal with arguments and facts related to climate change and climate science.
  • Many cases around the world are linking climate change law, science and policy with environmental law, science and policy. They are also linking climate/environmental law with human rights. This opens new fronts for judicial action.
  • The idea that a part of the planet, an ecosystem or nature itself has legal rights is new legal terrain.
  • Even when basic obligations are determined, it usually takes years for actual rights and remedies to be established and for results on the ground to be seen. The wheels of justice turn slowly, laws and court decisions get ignored, while the Amazon continues to be deforested.

What should companies do?

  • Add this topic to the company’s watch list.
  • Be ready to respond to the changing regulatory landscape and the effects it has on potential climate/environmental litigation. As these new kinds of cases continue to evolve, companies may find themselves facing legal challenges related to the transition to a lower-carbon global economy. Litigation creates pressure, regardless of its success or failure, and influences the regulatory and operating business environment.