Climate litigation in Latin America: is the region quietly leading a revolution?
Maria Antonia Tigre Sabin Center for Climate Change Law at Columbia Law School

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Natalia Urzola Global Network for Human Rights and the Environment

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Alexandra Goodman International Council of Environmental Law

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Climate litigation is a hot topic. Worldwide, jurisdictions are being presented with novel legal cases aiming to address the devastating effects of climate change. Domestic, regional and international courts are facing the challenge, deciding climate-related cases by using a myriad of approaches. Latin America is host to many of these climate litigation cases. Yet, in mainstream climate litigation literature, the role of litigation in Latin America is often overlooked, especially the role of litigation in ‘peripheral’ claims. We argue that limiting the definition of climate litigation to cases that directly invoke climate-change-related claims, albeit useful, ignores a significant number of cases with potentially strong influence in climate governance. We contend that Latin America provides a wide and relevant range of climate cases that could inform how climate governance is shaped, but that the majority of these cases rely on ‘peripheral’ climate claims: that is, on claims that may not directly mention climate change laws or data but which nevertheless have an impact on climate governance. Some of these claims refer to biodiversity protection (ie in the Amazon basin), while others appeal to climate change causes (ie air pollution). Furthermore, cases with innovative approaches such as those invoking the Rights of Nature or Intergenerational Equity also touch upon climate governance and the human–nature relationship. This article draws on the expanding body of climate-related cases in Latin America in order to assess the role of the region in advancing climate litigation.

Abstract

Climate litigation is a hot topic. Worldwide, jurisdictions are being presented with novel legal cases aiming to address the devastating effects of climate change. Domestic, regional and international courts are facing the challenge, deciding climate-related cases by using a myriad of approaches. Latin America is host to many of these climate litigation cases. Yet, in mainstream climate litigation literature, the role of litigation in Latin America is often overlooked, especially the role of litigation in ‘peripheral’ claims. We argue that limiting the definition of climate litigation to cases that directly invoke climate-change-related claims, albeit useful, ignores a significant number of cases with potentially strong influence in climate governance. We contend that Latin America provides a wide and relevant range of climate cases that could inform how climate governance is shaped, but that the majority of these cases rely on ‘peripheral’ climate claims: that is, on claims that may not directly mention climate change laws or data but which nevertheless have an impact on climate governance. Some of these claims refer to biodiversity protection (ie in the Amazon basin), while others appeal to climate change causes (ie air pollution). Furthermore, cases with innovative approaches such as those invoking the Rights of Nature or Intergenerational Equity also touch upon climate governance and the human–nature relationship. This article draws on the expanding body of climate-related cases in Latin America in order to assess the role of the region in advancing climate litigation.

1 INTRODUCTION

Climate change is one of the greatest challenges facing the current generation. The International Panel on Climate Change (IPCC) has consistently provided unequivocal evidence of the climate crisis and its devastating effects.1 Its most recent report confirmed the linkage between anthropogenic emissions and global warming with high confidence. Yet despite overwhelming scientific evidence, the level of states’ ambition to mitigate and adapt to climate change is still falling short. In response to this shortfall, judicial climate governance through climate litigation has emerged worldwide.2

Climate litigation is expanding globally, giving substance to transnational climate justice claims whereby courts shape climate governance and thus affect regulatory decision-making, corporate behaviour, and public understanding of the climate crisis.3 Domestic and transnational litigation has advanced the goals of the global climate framework,4 has successfully raised awareness of climate change’s devastating effects, and has enhanced the visibility of marginalized groups.5 Climate litigation can, as this article will argue, potentially drive legislation and policy changes in adaptation and mitigation efforts and positively influence future negotiations and state practice.6

Climate litigation in the Global South, and particularly in Latin America (LATAM), often frames climate change as a violation of human rights.7 LATAM is becoming an active region in climate litigation, with 86 cases as of March 2023.8 Most of these are recent: at least five LATAM countries saw their first climate cases emerge after 2017.9 Since then, regional climate litigation has proliferated. Yet, given the resistance in some regions to increased climate governance, some lawsuits might be motivated by concerns over climate change and yet be brought and decided on other grounds.10 Given this alternate framing, the number of cases that impact climate governance could be much higher.

Environmental rights in LATAM have played a dominant role as an instrument for advancing climate litigation. Most LATAM countries already recognize broad environmental rights (substantial and procedural) in their constitutions.11 With the widespread constitutionalizing of environmental rights, judges have at their disposal new and emerging legal theories and have adopted broad interpretations of existing norms to ground remedies for climate-related claims. This approach drives innovation and challenges legal formalism. Recent decisions and new claims show significant potential for accelerating climate litigation within this framing.12 Through the use of creative approaches including the elevation of green rights to fundamental rights, the use of expedited procedures to protect human rights, and the (re)interpretation of traditional rights and recognition of new ones, climate litigation in LATAM is making a pivotal contribution towards global efforts to tackle climate change. Rights-based climate litigation is an additional layer to this emerging trend.

Rights-based climate litigation helps ground claims for climate justice in constitutional provisions. Such cases facilitate better understanding by judges and practitioners of the nature and extent of climate threats, especially in the absence of a comprehensive legal climate regime.

This article explores the expansion of rights-based climate litigation in LATAM. It identifies three distinctive right-based pathways that courts in the region have relied upon in addressing climate-related claims. These pathways include invoking the right to a healthy environment through ‘traditional’ climate cases and peripheral claims,13 and creative interpretation of new and existing legal concepts, specifically rights of nature and the principle of intergenerational equity. We understand peripheral claims as claims that do not directly invoke climate change science or law but have practical effects on climate policy and governance. For instance, cases related to air pollution and deforestation directly influence climate governance even in the absence of a climate framing. Expanding the definition of climate litigation to include these types of claims may provide a broader understanding of the trends in global climate litigation.

This article is structured as follows: following this introduction, Section 2 outlines a definition of climate litigation that best captures the phenomenon as it is unfolding in the Global South. We demonstrate that the conception of climate litigation appropriate for the LATAM region will need to be sufficiently broad to accommodate claims beyond those that are explicitly framed as climate litigation claims. The broad definition adopted here thus differs from the prevailing approach used in the Global North, which refers explicitly to climate-based arguments or sees claims as seeking enforcement of existing climate laws. Section 3 contextualizes the exponential growth in rights-based climate litigation in LATAM by linking it to the region’s colonial experience, present social-economic realities, and limitations in existing environmental laws. Section 4 provides substantive discussion of the three rights-based approaches to climate litigation that have emerged from the LATAM region. Based on the substantive discussion in Section 4, we conclude in Section 5 by arguing that climate litigation experience in LATAM offers significant lessons and inspirations that could inform and shape ongoing climate litigation efforts in other countries around the world. We also reflect on what the next steps in climate litigation might be in LATAM.

2 DEFINING CLIMATE LITIGATION

Despite a global trend in climate litigation, there has been limited focus in scholarship on cases in the Global South.14 Key differences, however, exist between climate litigation in the Global North and in the Global South. For example, plaintiffs in the Global North usually seek to elicit new regulatory instruments to reduce emissions.15 Plaintiffs in the Global South often rely on existing legislative tools and human rights to push for climate action.16 This difference might come as a result of rights proliferation in the Global South: social and environmental injustices have driven countries in the Global South to enact a significant number of laws and regulations recognizing the constitutional rights of individuals and communities alike. By contrast, the Global North’s approach to positive rights and obligations is more limited. In dealing with climate change effects, Global North countries have started to adopt more stringent obligations and to enact specific regulations recognizing positive rights, heavily shaped by climate litigation trends. On the other hand, countries in the Global South face implementation challenges, which have become the focus of climate litigation there. For example, in most LATAM countries, there is already legislation regulating climate mitigation and adaptation,17 and cases often seek to enforce existing laws rather than adopt new or more stringent regulations.18 There is a significant degree of reliance on rights-based claims given the prominence of environmental constitutionalism.19 These types of claims are continually developing as the linkage between human rights and the environment at domestic, regional, and international levels becomes better understood.20 However, the Global South often lacks structural capabilities to implement legislation and/or the ambitious judicial remedies granted.21

These differences impact the way in which climate litigation is defined in the Global North and the Global South, a topic that has raised some significant academic debate. Some scholars have argued that the focus of the existing scholarship on the Global North has played a key role in shaping the predominant definition of ‘climate change litigation’.22 The Sabin Center for Climate Change Law, for example, refers to climate litigation as being any case in which the party filings, courts, or other administrative tribunals’ decisions directly and expressly raise a material issue of fact or law that disputes the substance of climate causes and impacts.23 Accordingly, as Lin and Peel note, ‘there is a danger that [the] seemingly universal definitions of climate change litigation’ that have been put forward to date ‘will fail to capture adequately developments occurring outside the Global North’.24 This definitional tilt does not adequately account for the fact that climate change brings a totally new set of challenges to litigation in the Global South, as countries that have not contributed significantly to greenhouse gas (GHG) emissions nevertheless suffer severely from climate change.25 Indeed, it has been argued that the predominant approach to defining climate litigation excludes cases involving environmental harms that, to some degree, can be traced to the impacts of climate change.26 As Hilson argues, ‘to count as climate change litigation, cases must be framed as such’, even as ‘this framing may not always appear on the face of the legal judgment itself’.27 A narrow understanding of the term ‘climate litigation’ therefore excludes a significant number of cases in the Global South that are nevertheless important for this discussion, such as cases related to air pollution, deforestation, and intellectual property.28

In light of the climate litigation boom, and grappling with its significance, scholars have suggested different typologies for the identification of cases.29 Peel and Osofsky, for example, have identified a range of cases that might be considered to be climate litigation, beginning with ‘core’ cases where climate change is ‘a central issue in the litigation’.30 Beyond these cases, Peel and Osofsky argue that climate litigation also includes ‘cases where (1) climate change is raised, but as a peripheral issue in the litigation, and (2) concerns over climate change motivate the lawsuit, at least in part, but are not raised explicitly in the claims or decision’.31 And, Peel and Osofsky also acknowledge that ‘[a]t the outer limits of the boundaries of climate change litigation lie cases that are not explicitly tied to specific climate change arguments but which have clear implications for climate change mitigation or adaptation’.32

Although some might describe the ‘peripheral’ approach as ‘stealthy’ or ‘incidental’ litigation, the approach has undoubtedly advanced climate litigation.33 It allows plaintiffs to rely on reasonably well-established legal arguments, avoiding judicial reluctance with regard to climate change claims.34 By packaging climate issues together with less controversial claims, the approach also reduces the possibility of politicizing climate issues.35

While several articles have discussed the definition of climate litigation, there is currently no scholarship focusing exclusively on the degree to which there are material differences between climate litigation in the Global South and in the Global North. While beyond the scope of this article, there is a growing need for investigation of whether climate litigation should be defined or theorized differently in different regions, such as in the Global South or LATAM specifically. The issue is a significant one because it is estimated that over three-quarters of the relevant cases in non-US jurisdictions concern ‘incidental climate change litigation cases’.36

This article follows Peel and Osofsky’s rationale in defining ‘peripheral’ claims. Adjusting the ‘lens’ through which climate litigation is understood broadens the body of cases pushing for increased climate governance.37 This broadening of focus also allows for a better understanding of the causes and effects of climate change, as well as of the role that litigation plays in advancing regulatory changes aimed at responding to and preventing further global warming.

LATAM judiciaries have allowed a range of peripheral climate cases, from public to private litigation, at national, regional, or international levels, seeking damage reparations and injunctions.38 Although different from more conventional litigation, these pathways can direct attention to the detrimental consequences of climate change without making an explicit claim that could sound too ‘political’ or otherwise challenge the separation of powers.39 And, while a case based solely on the existence of a right to a healthy environment might not be sufficient to succeed, combined with other factors (such as legislation or procedures facilitating rights claims, with a judiciary showing receptivity towards novel argumentation) it could be the way forward in climate litigation.40

This approach is not, however, without criticism. In peripheral cases, judges must often determine which issues are justiciable, due to problems stemming from the limits and failures of political institutions41 – an issue that has also been raised in the Global North.42 LATAM courts are often considered to be ‘activist tribunals’ whose decisions contribute to their countries’ structural transformation.43 Judicial empowerment allows for the attribution of responsibilities without requiring specific legislative regulations while simultaneously preventing impunity vacuums derived from an administrative lack of enforcement.44 As a result, defendants in climate-related claims argue that these are ‘politically motivated’ and misuse the legal system.45 Defendants expect climate issues to stay in the political realm. Meanwhile, the failings of climate negotiations have shown states’ inadequacy in implementing efficient policies.46 Consequently, climate litigation can advance efforts where formal political talks have failed.

The appropriate balance thus becomes a matter of how judges can accept climate claims without overstepping other political branches.

3 BRIEF BACKGROUND ON RIGHTS-BASED CLIMATE LITIGATION IN LATAM

Compared to landmark Global North climate cases, LATAM is often left out of the academic debate and media reports despite being a promising forum for cutting-edge climate litigation. Perhaps LATAM’s more visible environmental and economic problems, along with poor enforceability, have made its groundbreaking climate litigation less noticeable. ‘Peripheral’ claims have allowed LATAM courts to advance climate litigation by relying on preexisting constitutional and international provisions and providing judicial analysis for emerging questions such as climate justice, equity, the right to a stable climate, and intergenerational rights. This section discusses LATAM’s role in advancing climate litigation through a climate justice and rights-based narrative.47

Narratives based on procedural, distributive, and corrective justice raise awareness of pre-existing inequalities exacerbated through the differentiated effects of climate change.48 In the context of climate litigation, justice demands an equitable response to global issues as it concerns responsibility allocation.49 The unequal distribution of climate effects on individual rights (health, life, livelihood) is a rights issue that reflects a political and social process that reinforces the North–South binary.50 LATAM’s population is particularly vulnerable as communities’ livelihoods are highly dependent on agriculture or on coastal activities.51 Marginalized communities, such as Indigenous peoples and afro-descendants, are significantly affected by the adverse consequences of climate change – as well as being groups that have been historically neglected and excluded from decision-making processes.

Furthermore, climate knowledge production relies heavily on Western notions of power relations, where nature is traditionally seen as a mere commodity and local knowledge is ignored.52 Therefore, LATAM climate justice narratives reflect the need to address uneven effects suffered by particular groups in the Global South due to systemically unequal power relationships.53 These imbalances have sparked claims to recognize traditional knowledge and the rights of Indigenous people, nature, and future generations. Emerging strategic litigation brings visibility to marginalized groups, and emblematic cases allow such groups to break existing paradigms and reach novel solutions.54 Moreover, there is potential for advancing a rights-based approach that helps frame governance through a lens of fairness and justice.55

Without essentializing the region’s experience, general observations can be offered in order to explain the region’s expansion of peripheral claims. On the one hand, more ‘pressing’ issues (economic development, poverty alleviation, or public health) can lead climate change to be conflated with other concerns, such as land use, pollution, or forestry.56 On the other hand, conflicts between environmental protection and economic development are a constant reality, stemming from a policy focus that tends to prioritize foreign investment as a strategy for improving the economic development of countries.57 As is often the case, the rush to attract and retain foreign investment pushes environmental concerns to the periphery. The LATAM region also faces weak and fragmented institutions, incomplete legal foundations, and – often – low political will.58 As a result, enforcing decisions is sometimes challenging.

Despite these challenges, the LATAM region has advanced progressive environmental legislation, including procedural aspects such as increased access to justice, broad standing rules, and novel judicial approaches.59 The judges’ role is particularly relevant, as most embrace a progressive approach to the expansion of environmental protection beyond traditional boundaries, thus driving innovation and challenging legal formalism.60 Moreover, the fact that the existing legal framework recognizes the right to a healthy environment facilitates adjudication in courts.61

4 ENVIRONMENTAL CONSTITUTIONALISM: THE RIGHT TO A HEALTHY ENVIRONMENT AND OTHER ‘GREEN’ RIGHTS IN LATAM

Unlike the Global North,62 LATAM has actively advanced climate litigation through reliance on human rights provisions found in regional human rights treaties and in national constitutions. With recent constitutions, LATAM has been a global leader in environmental constitutionalism,63 opening the door to climate litigation grounded on the highest level of rights domestically. LATAM’s domestic courts have consistently embraced the right to a healthy environment and, in several cases, the rights of nature. This proliferation at the regional and national levels64 shows LATAM’s potential to advance rights-based climate litigation,65 and this section shows how LATAM’s widespread constitutional recognition of rights has already done so.

4.1 The substantive right to a healthy environment – LATAM leading global opinio juris

While the American Convention66 does not explicitly recognize the right to a healthy environment, it guarantees a vast set of human rights that can be threatened by environmental harm.67 While not directly justiciable,68 the San Salvador Protocol, a protocol to the American Convention, expressly guarantees the right to a healthy environment. Moreover, the LATAM region recently adopted the Escazú Agreement (which entered into force in 2021), which is the world’s first regional treaty that enumerates integrated human rights and environmental provisions.69 The Escazú Agreement expressly refers to ‘the rights of every person of present and future generations to live in a healthy environment and to sustainable development’.70 Through these regional agreements, LATAM is leading the way to acknowledge, affirm, and provide grounds for litigation for the increasingly justiciable right to a healthy environment71 and the rights of future generations. Further, Escazú enables new and more inclusive avenues for advancing rights-based climate litigation by requiring states to implement procedural environmental rights.72 With the Escazú Agreement, communities most vulnerable to the severe effects of the climate crisis can invoke its obligation upon State Parties to identify and support vulnerable persons and eliminate barriers to accessing environmental justice. Through Escazú’s groundbreaking provision on environmental defenders, persons focusing on the human rights effects of climate change may call on its specific protections for their work and safety.73

Moreover, the Inter-American System of Human Rights (IASHR) has recently advanced a green jurisprudence, recognizing the right to a healthy environment as ‘fundamental to the existence of humanity’.74 The IACtHR further developed the rationale of the right to a healthy environment in Indigenous Communities Members of the Lhaka Honhat Association v Argentina.75 In Lhaka Honhat, the Court directly applied the newly recognized right to a healthy environment and clarified that its protection extends to its components – ie, forests, seas, rivers, etc. – indicating an openness to recognizing the rights of nature.76 Furthermore, the Court specified that the implementation of the right to a healthy environment requires a positive duty to guarantee environmental protection.77 Arguably, this decision opens the door for rights-based climate litigation on the autonomous right to a healthy environment through (i) the recognition of states’ responsibility for transboundary environmental harm, and (ii) its finding that states must act where there are reasonable indications that activity might cause irreversible damage, even when there is scientific uncertainty concerning this point.78 The rationale of extraterritorial responsibility developed by the IACtHR was recently adopted by the Committee of the Rights of the Child, showing cross-fertilization – and the region’s normative and juridical leadership.79

These regional developments provide significant complements to national approaches as LATAM develops an accelerated opinio juris and acceptance of environmental law principles. While it is true that on a global level, landmark cases vindicating the right to a healthy environment are proliferating,80 LATAM’s treatment of the right to a healthy environment uniquely indicates its possibilities as a more direct path towards customary law status of the right to a healthy environment.

The right to a healthy environment in LATAM has been the subject of myriad cases, resulting in wider recognition of the right both domestically and regionally. Domestic courts and the IACtHR have helped to cement this right and to define its limits and contours. Moreover, the Human Rights Council resolution recognizing the right is supported, among other instruments, by reports from the Special Rapporteur on human rights and the environment.81 These reports have explicitly identified countries where the right is already recognized – recognition deployed in support of the Special Rapporteur’s claim concerning an evolutionary shift towards international recognition of the right to a healthy environment.82 Several of the good practices highlighted in these developments arise from the LATAM region. The United Nations General Assembly similarly recognized the right to a healthy environment in 2022 – a development arguably reinforcing LATAM’s normative leadership in a trending movement towards ‘climate constitutionalism’, a movement taking this normative momentum forward by recognizing a right to a safe climate.83

Meanwhile, rights-based climate litigation has proved to be promisingly successful in the Global South, which is particularly receptive to this type of claim. The proliferation of environmental courts, the development of environmental constitutionalism, and the rise of transnational judicial networks have significantly influenced these trends84 – which continue to intensify. For example, Chile’s Environmental Tribunal has existed since 2010,85 and Colombia is currently debating whether to establish a specialized environmental tribunal.86 The judiciary’s role in expanding rights-based climate claims has fostered the progressive realization of a safe and clean environment as a constitutional matter.87

However, despite having some of the world’s most promising approaches to environmental constitutionalism, LATAM’s implementation gap is substantial.88 Constitutional provisions have often not been effectuated through necessary key legislation,89 a lack which recursively reinforces the courts’ role in advancing environmental protection and, more specifically, climate governance.90 Because environmental constitutional provisions are so prevalent in LATAM states,91 at least 37 climate cases enforcing the right to a healthy environment have been brought in LATAM in the past few years.92 These cases often have strong linkages with climate impacts.93 However, this evolving normative landscape can also provide a launchpad for ‘peripheral climate cases’ calling for states’ and corporations’ accountability to prevent, and to protect communities from, climate impacts that infringe on constitutional rights.94

4.2 Emerging climate cases through peripheral and direct claims: an overview

Just as climate change cares not for sovereign borders, climate change litigation is evolving beyond arguments dependent on climate-specific claims or science. This section of the article analyses a few categories in which rights-based approaches – sometimes directly including climate claims, and sometimes peripherally – have advanced climate litigation in LATAM. These categories were selectively chosen and represent some regional trends but are not meant to exhaustively analyse climate litigation in the region.

4.2.1 Air pollution cases

Air pollution is often caused by activities such as the production and combustion of fossil fuels.95 These causes of air pollution are the same factors driving climate crisis through the release of GHG emissions into the atmosphere.96 Climate change effects such as biodiversity loss, ecosystem destruction and extreme weather events, heatwaves, droughts, and wildfires exacerbate air pollution by eliminating natural air cleaning mechanisms, causing millions of premature deaths annually.97 Smog, a type of air pollution, is also worsened by heat, forming in warmer weather and when there is more ultraviolet radiation, both intensified by GHGs emissions.98 Burning fossil fuels and biomass – alongside deforestation and industrial agriculture – are human activities with the most significant impact on climate.99 As a result, controlling air quality is of paramount importance to preventing air pollution and GHG emissions. Most governments approach air pollution control by enforcing air emission and quality standards to ensure ‘clean air’.100 Halting GHG emissions has been shown to reduce other co-emitted air pollutants, benefitting air quality and human health, while also slowing global warming.101

Several cases heard in courts in the LATAM region illustrate that air pollution litigation can have trend-setting potential. In Brazil, cases such as the Airline Companies102 and the Steel Company103 can be identified as being direct climate litigation claims. In the former, plaintiffs invoked a direct link between the airlines’ activities in the region’s international airport and GHG emissions to ask for reforestation measures to offset the airlines’ emissions.104 In the latter, petitioners claimed climate damages resulting from GHG emissions allegedly caused by the use of charcoal from illegal production and deforestation.105 In both cases, the link between GHG emissions and climate change was explicit: plaintiffs argued the need to seek measures that ensure that GHG and other pollutant emissions caused by these activities are fully absorbed. They claim that these emissions have a direct causal link to global warming and that the companies in question have a responsibility to redress climate harm derived from GHG emissions.

Similarly, in a 2019 decision, the Argentinian Federal Criminal Court declared that the human right to access air that is free from pollutants as a result of anthropogenic activities derives from the right to enjoy a healthy and non-degraded environment.106 In particular, the Court recognized that anthropogenic activities, such as vehicle congestion and the development of urban areas, are leading causes of the climate crisis.107 The Court thus recognized the right to access pollutant-free air as a human right and based its reasoning on the openness and interrelatedness of environmental and human rights.108

However, most of the cases to be analysed in subsections 4.2.1 and 4.2.2 of the present article appeal to ‘peripheral’ claims. For example, invoking the right to a healthy environment has won Chilean plaintiffs compensation for health injuries caused by industrial pollution.109 More recently, the Chilean Supreme Court cited the constitutional right to a healthy environment as grounds for declaring the government responsible for failing to guarantee pollutant-free air.110 Even though the Court found that there was not enough evidence to hold oil and mining companies accountable, the decision underscores the need for government measures to identify and limit emissions from air pollution in order to protect fundamental rights.111 Given the connection between air pollution and climate change, this decision is particularly relevant to the present analysis. Imposing limits on emissions could help identify the main pollutants’ contributors to climate change, while at the same time addressing one of its main consequences by finding ways to ensure clean, safe air for Chileans. Protecting the right to a healthy environment through acknowledging the need to impose limits on oil and mining companies helps to bridge this connection and advance climate protection through an order to guarantee pollutant-free air.

In Brazil, other cases that have peripherally addressed GHG emissions relate to sugar cane burning in the harvesting process,112 clearing land for grazing,113 and draining and clearing mangroves to create a landfill.114 As with the Argentinean and Chilean cases, the Brazilian cases rely on environmental provisions, such as those relating to the control of air pollution or the protection of fragile ecosystems. In addition, they also rely heavily on the right to a healthy environment and use climate change as a peripheral argument.

Accordingly, it appears that due to the direct relationship between GHG emissions, air pollution and climate change, various actors have found a way to push for climate governance through orders aimed at ensuring clean air. This approach arguably advances climate litigation by allowing plaintiffs to tackle climate change as a correlated matter, which means that plaintiffs can rely on tried and tested arguments that are less controversial and more generally accepted by existing jurisprudence.

4.2.2 Protection of Amazonia (and beyond)

Rights-based climate litigation has been particularly significant in protecting Amazonia. The region’s forests absorb about 20 per cent of global atmospheric carbon derived from fossil fuel burning115 and, as such, significantly mitigate climate change.116 However, increasing deforestation intensifies climate change’s devastating effects.117 Land-use changes and a record number of fires inform environmentalists’ calls for enhanced regional governance.118 The limited implementation of existing norms at the international, regional, and national levels has prompted the development of new measures to improve the protection of the Amazon, including proceedings before domestic and international courts.119 For example, the recently adopted Escazú Agreement includes a dispute settlement mechanism that allows for submitting a dispute to the International Court of Justice should a dispute between Parties arise regarding interpretation or application of the Agreement’s provisions.120

In theory, every case that addresses deforestation in Amazonia – or in other ecosystems relevant for mitigation, such as the Páramos – could be considered to be a climate case due to its significance for climate governance. Yet this approach would likely broaden the scope of focus so much that it could negatively affect an analysis of regional trends. This section therefore selectively highlights some of the cases that significantly impact climate governance. Such cases can be described as being climate litigation cases because of several factors. First, some cases are explicitly framed as climate cases by the plaintiffs. Second, others come under the category of climate litigation because the court recognized the climate impacts of the decision. Third, cases may be categorized as climate litigation because they relate to broad environmental policies that significantly affect climate change. This analysis is not exhaustive.121 The cases analysed here represent examples that seek to hold government and corporations accountable for activities that might endanger or damage fragile ecosystems critical to mitigating climate change.

An early example of climate litigation thus defined can be found in a 2007 Brazilian case related to ecosystem protection. The case concerned the legality of a corporation’s clearing of a mangrove forest to create a landfill.122 The court noted the ecosystem functions served by mangroves, especially in mitigating sea level rise.123 Similarly, in a 2016 Chilean case, a development group challenged a corporation’s hydroelectric dam approval because the environmental impact assessment (EIA) had failed to consider potential climate impacts on wetlands and forests, which function as biodiversity centres and carbon sinks.124 While the court dismissed the climate claims, it annulled the EIA for failing to include compensation for ecosystem disruption and ordered a new EIA to consider climate change impacts. In a 2016 Colombian case,125 the Constitutional Court found that legal exemptions to regulatory oversight126 in the unique Páramos ecosystems were unconstitutional and held regulatory authorities accountable for ignoring the climate-related costs of resource extraction in the Páramos. The court specifically described the Páramos as a ‘carbon capture system’, and noted its role in climate change mitigation and adaptation.127

In 2020, the Brazilian Supremo Tribunal Federal (STF) issued precautionary measures in three related cases, ordering the suspension of a government agency’s128 resolution revoking norms regulating industrial activities that might be harmful to unique ecosystems, including mangroves, dunes, and permanent preservation areas.129 In its reasoning, the court relied on the constitutional right to a healthy environment, International Environmental Law (IEL) principles such as non-regression and precaution, and the duty to comply with international commitments.130 The court further invoked the IACtHR’s developing green jurisprudence, stating the need to protect individual elements of the environment as well as ecosystems as a whole.131 The court further stated the need to harmonize sustainable development with the right to life and health of present and future generations.132 While climate change is not explicitly mentioned, the court’s reasoning has climate implications. Specifically, the court’s recognition of the need to protect ecosystems as a whole is directly relevant to climate mitigation because it is tacitly connected to the recognized role that ecosystems play in mitigation of the effects of climate change.

Brazil has over a decade of direct and peripheral climate litigation cases, with at least thirty such cases filed in 2019–2022133 and the Amazon rainforest featuring prominently. Recently, several new cases questioning forestry and land-use changes have been brought. In these, climate claims are either a core argument or are addressed at the periphery. Yet, in all of the cases, the right to a healthy environment remains a core argument. Several cases were filed by the Amazon Task Force (ATF), targeting multiple stakeholders including the federal government, environmental agencies, and private ranchers.134 In April 2020, the ATF filed an injunction to curb deforestation and other environmental damage caused by illegal activities.135 The ATF argued that the federal government failed to contain a surge in deforestation, and that limited action was taken to prosecute cases arising from investigations threatening protected areas and Indigenous territories.136 The lower court granted the injunction, declaring that the failure to curb deforestation threatened the right to a healthy environment. The court further invoked the precautionary principle and the principle of non-regression to order government agencies to immediately implement command and control actions to stop perpetrators in deforestation hotspots.137 The ruling was later overruled by the Court of Appeal, which privileged the separation of powers and environmental bodies’ autonomy.138

In another case filed in 2020, plaintiffs sought an injunction to nullify a federal environmental agency’s act that eased timber exportation requirements, noting the Amazon’s key role in mitigating climate change and its protected status as natural heritage.139 Finally, in an unprecedented tort case filed in 2021, the ATF targeted a rancher for the deforestation of a large cattle area, seeking accountability for climate damage.140 The case was also grounded on the right to a healthy environment, showing its reach beyond the traditional state’s obligation towards a duty of care.141

In November 2020, four political parties joined forces to file a lawsuit before the STF related to the government’s acts and omissions in executing the Action Plan for Prevention and Control of Deforestation in the Amazon.142 The plaintiffs invoked the violation of the fundamental right to a healthy environment of the Amazon region’s populations, predominantly Indigenous and traditional communities, as well as future generations, among violations of other rights such as life, human dignity, and health. Additionally, two lawsuits filed by the same parties before the STF directly target climate governance, one calling on the government to mobilize resources from the Amazon Fund143 and the other asking it to resume the disbursement of the National Fund on Climate Change and reactivate its governance bodies.144 In the second case, the plaintiffs sought an injunction requiring the fund to prepare an annual plan for using its resources.145 Finally, both cases have held public hearings to collect expert views and clarify the facts related to climate change.146 These cases will likely reshape climate litigation in the region by allowing a collateral climate-change-mitigating effect to be achieved through the protection of the Amazon region via the right to a healthy environment. LATAM’s success with various rights-based peripheral tactics, such as intergenerational equity and Amazonia deforestation claims, indicates the viability and potential expansion of successful peripheral claims in LATAM that could inspire such efforts globally.

These examples show how some newer cases in LATAM, even with peripheral claims, invoke the right to a healthy environment to push for increased climate mitigation or adaptation. The growth of these types of claims shows that the region needs to be at the centre of the broader discussion of rights-based climate litigation. The recognition of the constitutional right to a healthy environment facilitates the growth of climate litigation, as the states’ failure to take adequate steps to guarantee a healthy environment by addressing the climate crisis constitutes a direct violation of fundamental rights and warrants a response from courts.147 More robust development of the right to a healthy environment would add to the existing group of arguments that allow the protection and redress of climate-related damage. The cases mentioned, most of which are still pending, show great promise in this regard.

4.3 Progressive judicial approaches to environmental protection: ‘new’ rights in climate litigation claims

LATAM judges have actively shaped climate litigation and governance. For example, by invoking ‘new’148 rights of future generations or the rights of nature, such judges can further advance climate claims by providing a different and nuanced reading to the existing body of rights. In particular, as will be argued below, these rights push the boundaries of the traditional subject of rights, opening the door to new forms of rights-holders – and the rights of future generations are particularly relevant for climate litigation due to the challenging nature of the time gaps between climate-change-inducing activities and their effects.

4.3.1 Rights of Nature

In addition to the human right to a healthy environment, what role is there for the Rights of Nature (‘RoN’) as an avenue to push for more climate action?149 RoN as a legal tool provides a mechanism to shield nature from threats and violations by extending rights to natural entities and systems.150 We suggest that, informed by an ecocentric ethic, RoN could supplement existing strategies in climate litigation.151

Ecuador and Bolivia were pioneers in transforming abstract concepts of RoN into legally binding rights.152 The Ecuadorian Constitution specifies that environment-related legal provisions must be interpreted in the most favourable way to nature,153 in line with the in dubio pro natura principle.154 By 2018, ten out of 13 Ecuadorian cases upheld the RoN.155 These cases156 show how RoN can be furthered when constitutional provisions are interpreted applying a pro natura interpretation.157 For example, in the Cayapas Shrimper case, the Ecuadorian Ministry of Environment challenged vested economic interests regarding shrimp farms built on land already designated as a protected nature reserve for mangrove ecosystems.158 Ecuador’s Constitutional Court acknowledged that the RoN affect all other constitutional rights, and thus that there was a violation of constitutional due process that overpowered property rights. Through the implementation of the RoN, the court ensured the protection of a vital ecosystem for climate mitigation.159 Similarly, in Vilcabamba,160 an Ecuadorian court recognized a river’s rights to flow, to perform essential functions, and to be free from pollution.161 In Colombia, courts have granted legal rights to specific ecosystems, such as the Atrato River,162 the Isla de Salamanca National Park,163 and Colombia’s Amazon basin.164

Regionally, the IACtHR has shown an openness to the RoN and to the environment’s intrinsic value,165 and this ecocentric understanding of what the right to a healthy environment entails can pave the way for favourable outcomes on RoN climate litigation in LATAM. Questions regarding the obligations of grand-scale projects to factor in climate change were also noted, potentially leading to contentious cases. A similar argument could be applied to polluting activities such as to cases of fossil fuel companies seeking extraction rights in previously designated protected areas, an approach which, if applied, further tilts the scale towards environmental protection and the mitigating aspects of certain ecosystems at the national or regional level.

While the recognition of RoN provides a legal breakthrough that might facilitate nature being understood as more than an object to be acted upon or extracted from, the conflict between RoN and LATAM states’ right to exploit and commercialize natural resources remains central to social clashes between environmental movements and governments’ economic interests.166 The Ecuadorian Condor-Mirador case illustrates how extractive interests can conflict with the implementation of RoN. In this case, the judge adopted a restrictive interpretation, holding that a contested mining project would not affect a protected area, a finding that contradicted the Ministry of Environment’s assessment.167 The court explicitly invoked the tension between the state’s aim of pursuing economic development through mining activities on the one hand, and the environmental harm derived from those activities on the other.168 The court reasoned that environmental protection arguments, such as the RoN, could not be interpreted to the extent of prohibiting mining activities altogether.169 Hence, the court concluded that all human activity impacts nature, and that tension with environmental protection should be resolved in favour of improving the conditions of life in society, in accordance with sustainable development.170 In Tangabana, RoN claimants seeking to remove a pine tree plantation situated in a fragile páramos ecosystem were ruled against by a local court on procedural grounds, arguing that the claimants did not own the land and thus were not harmed themselves.171 RoN’s potential conflict with economic development and hurdles regarding standing and the proliferation of rights thus contribute to RoN controversy.172

Nevertheless, we argue that RoN can provide an additional argument for addressing the climate crisis, moving away from the traditional anthropocentric perspective to a nature-based, ecocentric view. Upholding RoN implies greater care for the environment through the recognition of specific rights of nature or its features. Climate-change-inducing activities would then be subjected to further scrutiny in order to make sure that such activities are respecting nature’s rights. GHG and other pollutant emissions, for example, might violate RoN by endangering ecosystems or by affecting air quality. The language of rights provides an additional protection to nature, one that could be easily implemented through existing mechanisms. However, such an approach would entail a paradigm shift away from the dominant economic model and require judicial willingness to explore new understandings of the human–nature relationship.173 There is some evidence of a shift in this direction: RoN-based litigation has seen some success, with a global rise in RoN being deployed as viable grounds for climate-related arguments.

4.3.2 Intergenerational equity

To strengthen environmental protection, several countries have embraced a duty to protect the environment for the benefit of ‘future generations’.174 This approach acknowledges the long-term consequences of environmental damage and of climate change.175 Where this right has not been expressly recognized, some courts have nevertheless interpreted existing environmental obligations expansively to include a duty owed to future generations.176 Importantly, courts have also integrated the principle of intergenerational equity177 into climate litigation.

The 2018 Colombian case Future Generations v the Ministry of the Environment and Others, as ‘the first [lawsuit] on climate change and future generations in Latin America’,178 is a case in point. Through a constitutional tutela action179 brought by 25 youth plaintiffs against the government and several corporations, the plaintiffs asserted that the government’s failure to comply with its international commitment to ensure net-zero Amazon deforestation by 2020 was a violation of their human rights. The Supreme Court recognized a substantial link between the government’s commitment to reduce deforestation, GHG emissions, and fundamental and constitutional rights, such as the rights to life, health, human dignity and to a healthy environment.180 The Court also invoked the principle of solidarity to conclude that all humans of every generation have environmental rights. The Court then stated that human rights violations affect the ‘Other’ – that is, every other person, animal or plant species on the planet, including future generations.181 The Court underscored that everyone is entitled to natural resources and that failing to regulate consumption in a fair and equitable way now compromises future generations’ access to those resources.182 Thus, environmental intergenerational equity is, in the Court’s understanding, two-fold: it is based on (i) the ethical duty of solidarity, and (ii) nature’s intrinsic value.183 The Court explicitly noted that Amazonia is a vital ecosystem of global importance and found that the state’s failure to curb deforestation violated human rights and international climate commitments, such as the Paris Agreement.184 Future Generations opened the door to youth climate lawsuits by substantially expanding constitutional provisions to future generations, including creating an ‘intergenerational pact’ to reduce deforestation and GHG emissions.185

A similar claim was brought in Peru. In 2019’s Alvarez et al. v Peru, youth plaintiffs argued that the constitutional right to an adequate and balanced environment is crucial for enjoying other fundamental rights such as the rights to life, health, and human dignity.186 Analogous to Future Generations, the plaintiffs argued that the government had failed to take sufficient climate action and to uphold its domestic Amazon deforestation plans,187 thus violating its constitutional and regional obligations.188 The plaintiffs sought to enforce concrete goals and actions to achieve net-zero deforestation by 2025, including adaptation and mitigation measures. Petitioners argued that intergenerational equity is embedded within the principle of sustainable development.189 Claimants also asserted that it is a duty of each generation to leave enough natural resources for future generations to enjoy.190 In this particular case, the plaintiffs contended that uncontrolled deforestation – as a main climate change driver – needs to be regulated in order to protect the rights of present and future generations. If successful, Alvarez could join Future Generations in crystallizing intergenerational equity and the protection of Amazonia as viable grounds for climate lawsuits in LATAM.191 These cases show that the government’s environmental planning, even where climate is incidental to the central subject matter of a case, can form a basis from which to make justiciable, constitutionally grounded claims to protect the right to a healthy environment and the rights of future generations. Where these rights are gaining recognition in IEL and climate litigation around the world, LATAM’s Future Generations and Alvarez are inspirational and contribute to global opinio juris for the emerging IEL rights of the right to a healthy environment and the rights of future generations.

In 2016’s Comunidad de Chanaral v Codeco, the Chilean Supreme Court declared that the right to a clean environment is owed to individuals, communities, and future generations.192 Furthermore, in April 2021, six young people sued the Brazilian government, seeking to annul Brazil’s revised emissions commitments to the Paris Agreement that, by 2030, would allow more GHG emissions than would Brazil’s original commitment.193 Finally, the recent Allegations of Noncompliance with a Fundamental Precept ADPF 747, 748, and 749 Brazilian decisions also raise the rights of future generations.194 As discussed in previous paragraphs, the rights of future generations are directly impacted by current environmental degradation and by the climate crisis. Actions to curb global warming and other devastating consequences of climate change will help ensure future generations’ enjoyment of nature and natural resources in the same way as current generations currently enjoy them. LATAM courts’ recognition of the rights of future generations implies adopting measures to fight climate change today, thus influencing climate policy and mitigation and adaptation actions.

By recognizing future generations’ rights, judges are relying on previous decisions to expand climate governance and protection, with a better understanding of causes and effects, as well as laying grounds for accountability. Progressive judicial approaches are crucial in upholding the law’s dynamism while protecting the environment. This recognition of decisions in other jurisdictions is especially relevant considering the cross-fertilization of courts, as climate decisions from one country are often used as a basis for the expansion of climate litigation in another.

5 CONCLUSION

Socio-economic and political contexts are relevant to applying the human rights framework for climate claims in LATAM:195 a call for climate justice emerges, and LATAM countries are actively advancing climate litigation by holding governments liable and by imposing remedies for failing to comply with GHG emission targets.196 Global South states have contributed less to the climate crisis as compared to Global North countries. Yet, the Global South is disproportionately bearing the consequences of climate change’s devastating effects and shouldering the costs derived from climate litigation, even as it plays an active role in advancing climate-related cases.197 This climate justice aspect is central to climate litigation in the region.

An analysis of the rise in climate litigation shows the crucial role of environmental constitutionalism in Latin America. Recent and emerging cases are often grounded on the right to a healthy environment as the primary legal basis for questioning (a lack of) climate policies. Additionally, LATAM courts increasingly recognize international instruments as binding sources of law that require specific commitments from governments concerning climate mitigation and adaptation. With rising deforestation rates and rollbacks in environmental protection in Latin America, climate litigation there has been increasingly pursued in order to hold governments accountable for failing to ensure constitutional rights.

The LATAM judiciary’s consistent acceptance of climate claims means that LATAM rights-based litigation is pivotal in advancing global climate litigation: when fundamental rights are at stake, the judiciary can legitimately act to protect them, which is why success in climate litigation goes hand-in-hand with environmental constitutionalism.198 By relying on fundamental rights, LATAM environmentalists are showing the benefits of a ‘rights turn’ to climate litigation when rights are connected with rather than incidental to climate change. Cases show how invoking fundamental rights, including the rights to life, health, and human dignity, can critically affect climate efforts, regardless of enforcement problems. LATAM rights-based climate litigation has proved successful so far and has reinforced the principle that climate is no longer exclusively relegated to political debate but is a constitutional matter.199

The ‘rights-based turn’ in climate litigation has arguably been a necessary response to insufficient international action. Concurrent with the growth of rights-based climate litigation are calls to recognize a stand-alone right to a stable climate as a way of counteracting the devastating effects of climate change that foster political oppression and human rights abuses.200 A stand-alone right to a stable climate could provide a direct legal basis for climate litigation, and in the LATAM region a recent lawsuit filed by Instituto de Estudos Amazônicos (IEA) against the federal government of Brazil sought recognition of such a right to a stable climate for present and future generations.201 The main argument is that the failure by the Brazilian government to comply with its action plans to halve deforestation and to combat climate change, particularly its failure to meet the emission targets set out in the National Climate Change Policy Act,202 amounts to a violation of fundamental and constitutional rights, including the right to a stable climate, which the plaintiffs consider to be implicit in the Brazilian Constitution.203 If successful, the strategic approach assumed by IEA could have groundbreaking effects. It could provide comparative guidance for litigants and judges in other national legal systems on how existing constitutional rights may be interpreted in an expansive manner to derive a right to a stable climate. Moreover, recognition of a ‘new’ right to a stable climate by a LATAM court could inform ongoing discourses centred on the need to recognize a similar right as an international law norm. Such LATAM judicial recognition could thus help future cases by consolidating a specific right whose violation is easier to identify, and hence, to address.

Analysis of climate litigation should include assessment of its effectiveness and impacts, including court decisions, publicity implications and influence on litigation campaigns.204 Impacts could range from weak (raising awareness) to substantial (policy changes or the recognition of new green rights), or something in between (providing content to procedural hurdles such as standing, regardless of result). Moreover, climate litigation can stir societal debate given the publicity of these cases, even before a judgment is rendered.205 For example, cases in Peru and Brazil have brought significant attention to whether the government will be held accountable for failing to take sufficient action to uphold plans to address Amazon deforestation.

With several cases currently pending in LATAM national courts, climate litigation has the potential to expand significantly in the coming years. The region’s innovative arguments provide new avenues for such litigation, and courts have thus far shown openness to these innovations, demonstrating the increased role of judges in climate governance. With the growing significance of judicial governance in climate change in the Global South, and LATAM in particular, academics should assess what climate litigation means and how global trends are developing, using comparative environmental and climate law that is genuinely far-reaching and encompasses the growing effects of decisions in neighbouring countries. LATAM provides a paradigmatic example of the potent normative effects of judicial decision-making on this most pressing of issues.

  • 1

    V Masson-Delmotte, P Zhai & A Pirani (eds), IPCC, 2021: Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change , (Cambridge University Press, 2021 ).

    • Search Google Scholar
    • Export Citation
  • 2

    I Alogna and E Clifford, Climate Change Litigation: Comparative and International Perspectives (British Institute of International and Comparative Law, 2020) 2, doi:10.13140/RG.2.2.11791.00160;

    B Preston, ‘Climate Change Litigation’ (2011) 5 Carbon & Climate Law Review 1, 3–14 <www.jstor.org/stable/24324006>.

    See ie Asian Development Bank, Climate Change, Coming Soon to a Court Near You: Climate Litigation in Asia and the Pacific and Beyond (2020) 25. See also other reports in the series: Climate Change, Coming Soon to a Court Near You: Report Series Purpose and Introduction to Climate Science (2020) 25; Climate Change, Coming Soon to a Court Near You: National Climate Change Legal Frameworks in Asia and the Pacific (2020); Climate Change, Coming Soon to a Court Near You: International Climate Change Legal Frameworks (2020).

  • 3

    Peel J & Lin J , '‘Transnational Climate Litigation: The Contribution of the Global South’ ' (2019 ) 113 Am. J. of Int’l L. : 679, 681, 699.

    . See also AP Riaño, ‘Litígio Climático e Direitos Humanos’, in J Setzer et al. (eds), Litigância Climática: Novas Fronteiras para o Direito Ambiental no Brasil (Revista dos Tribunais, 2019); L Albuquerque et al., ‘Litigância climática como instrumento indutor da descarbonização da matriz energética brasileira’ (2019) 11 Revista Videre 154, 165–166; J Setzer and C Higham, Global Trends in Climate Change Litigation: 2021 Snapshot (Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science, London 2021) 6 <www.lse.ac.uk/granthaminstitute/wp-content/uploads/2021/07/Global-trends-in-climate-change-litigation_2021-snapshot.pdf>.

  • 4

    Peel and Lin, ‘Transnational Climate Litigation’ (n 3) 696.

  • 5

    Alogna and Clifford, Climate Change Litigation (n 2) 13.

  • 6

    ibid.

  • 7

    ibid 5.

  • 9

    United Nations Environment Programme, Global Climate Litigation Report: 2020 Status Review (Nairobi, 2020). Part 2, Note 2 <https://wedocs.unep.org/bitstream/handle/20.500.11822/34818/GCLR.pdf?sequence=1&isAllowed=y>

    • Search Google Scholar
    • Export Citation
  • 10

    Peel J & Osofsky H , Climate Change Litigation: Regulatory Pathways to Cleaner Energy , (Cambridge University Press , 2015 ) 9.

  • 11

    J Auz, ‘Human Rights-Based Climate Litigation in Latin America’, OxHRH Blog, published online 14 April 2021, <https://ohrh.law.ox.ac.uk/human-rights-based-climate-litigation-in-latin-america> accessed 7 March 2022.

    • Search Google Scholar
    • Export Citation
  • 12

    Peel and Lin, ‘Transnational Climate Litigation’ (n 3) 713.

  • 13

    These arguments are used concomitantly.

  • 14

    Exceptions include Peel and Lin, ‘Transnational Climate Litigation’ (n 3) 681;

    Setzer J & Benjamin L , '‘Climate Litigation in the Global South: Constraints and Innovations’ ' (2020 ) 9 (1 ) Transnational Environmental Law : 77, 84.

    ; J Setzer and L Vanhala, ‘Climate Change Litigation: A Review of Research on Courts and Litigants in Climate Governance’ (2019) WIREs Climate Change online articles <https://wires.onlinelibrary.wiley.com/doi/abs/10.1002/wcc.580>; I Alogna et al., Climate Change Litigation: Global Perspectives (Brill | Nijhoff 2021); F Sindico and MM Mbengue, Comparative Climate Change Litigation: Beyond the Usual Suspects (Springer 2021); J Lin and D Kysar, Climate Change Litigation in the Asia Pacific (Cambridge University Press 2020).

  • 15

    J Peel, H Osofsky and A Foerster, ‘A “Next Generation” of Climate Change Litigation? An Australian Perspective’ (2017) 9(3) Oñati Socio-Legal Series 275–307 <http://dx.doi.org/10.35295/osls.iisl/0000-0000-0000-1060>.

    • Search Google Scholar
    • Export Citation
  • 16

    Setzer and Benjamin, ‘Climate Litigation in the Global South’ (n 14) 85.

  • 17

    See

    Grantham Research Institute on Climate Change and the Environment, Climate Change Laws of the World, <https://climate-laws.org/>.

  • 18

    Peel and Lin, ‘Transnational Climate Litigation’ (n 3) 684–5, 715. Setzer and Benjamin, ‘Climate Litigation in the Global South’ (n 14) 86.

  • 19

    Peel and Lin, ‘Transnational Climate Litigation’ (n 3) 712. For the rise of environmental constitutionalism, see

    Boyd DR , '‘The Constitutional Right to a Healthy Environment’ ' (2012 ) 54 (4 ) Environment: Science and Policy for Sustainable Development : 3.

    , and JR May and E Daly, Global Environmental Constitutionalism (Cambridge University Press 2014).

  • 20

    MA Tigre, ‘Major Developments for Global Climate Litigation: The Human Rights Council Recognises the Right to a Healthy Environment and the Committee on the Rights of the Child Publishes its Decision in an International Youth Climate Case’, Sabin Center Climate Law Blog, published online 12 October 2021 <http://blogs.law.columbia.edu/climatechange/2021/10/12/major-developments-for-global-climate-litigation-the-human-rights-council-recognizes-the-right-to-a-healthy-environment-and-the-committee-on-the-rights-of-the-child-publishes-its-decision-in-an-inter/> accessed 7 March 2022.

    • Search Google Scholar
    • Export Citation
  • 21

    J Auz, ‘Global South Climate Litigation Versus Climate Justice: Duty of International Cooperation as a Remedy?’ Völkerrechtsblog, published online 28 April 2020 <https://voelkerrechtsblog.org/global-south-climate-litigation-versus-climate-justice-duty-of-international-cooperation-as-a-remedy/> accessed 7 March 2022.

    • Search Google Scholar
    • Export Citation
  • 22

    Cunha K & Rei F , '‘Litigância como estratégia de fortalecimento da governança climática: reflexões para o contexto brasileiro’ ' (2018 ) 9 (3 ) Revista de Direito Econômico e Socioambiental : 303, 306.

    • Search Google Scholar
    • Export Citation
  • 23

    Peel and Lin, ‘Transnational Climate Litigation’ (n 3) 688. United Nations Environment Programme and Sabin Center for Climate Change Law at Columbia University, The Status of Climate Change Litigation – A Global Review (UNEP 2017) <http://columbiaclimatelaw.com/files/2017/05/Burger-Gundlach-2017-05-UN-Envt-CC-Litigation.pdf>. See also The Sabin Center database <http://climatecasechart.com/about/>.

    • Search Google Scholar
    • Export Citation
  • 24

    Peel and Lin, ‘Transnational Climate Litigation’ (n 3).

  • 25

    Shah SMA , '‘Foreword’ ', in J Lin & DA Kysar (eds), Climate Change Litigation in the Asia Pacific , (Cambridge University Press, 2020 ).

  • 26

    Hornung D, Kysar DA & Lin J , '‘Introduction’ ', in J Lin & DA Kysar (eds), Climate Change Litigation in the Asia Pacific , (Cambridge University Press , 2020 ) 3.

  • 27

    Hilson C , '‘Climate Change Litigation in the UK: An Explanatory Approach (or Bringing Grievance Back In)’ ', in F Fracchia & M Occhiena (eds), Climate Change: La Risposta del Diritto , (Editoriale Scientifica, 2010 ).

    • Search Google Scholar
    • Export Citation
  • 28

    Cunha and Rei, ‘Litigância como estratégia de fortalecimento da governança climática’ (n 22) 306.

  • 29

    K Bouwer and J Setzer, ‘Climate Litigation as Climate Activism: What Works?’ [2020] The British Academy COP26 Briefings 7 <http://dx.doi.org/10.5871/bacop26/9780856726538.001>.

    • Search Google Scholar
    • Export Citation
  • 30

    Peel and Osofsky, Climate Change Litigation (n 10) 8.

  • 31

    ibid 9.

  • 32

    ibid.

  • 33

    K Bouwer, ‘The Unsexy Future of Climate Change Litigation’ (2018) 30 J. Envtl. L. 483; G Ganguly, J Setzer and V Heyvaert, ‘If at First You Don’t Succeed: Suing Corporations for Climate Change’ (2018) 38 Oxford J. Legal Stud. 841;

    Markell D & Ruhl JB , '‘An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual?’ ' (2011 ) 64 (1 ) Florida Law Review : 15.

    • Search Google Scholar
    • Export Citation

    ; J Peel et al., ‘Shaping the “Next Generation” of Climate Change Litigation in Australia’ (2017) 41 Mel. U. L. Rev. 793.

  • 34

    Peel and Lin, ‘Transnational Climate Litigation’ (n 3) 715.

  • 35

    ibid 716.

  • 36

    Ganguly, Setzer and Heyvaert (n 33), 843.

  • 37

    Peel and Lin, ‘Transnational Climate Litigation’ (n 3) 683.

  • 38

    L Burgers, ‘Should Judges Make Climate Change Law?’ (2020) 9 Transnational Environmental Law 55, 57 <https://www.cambridge.org/core/journals/transnational-environmental-law/article/should-judges-make-climate-change-law/D9B088113959571B24E97F5E976CA107>.

    • Search Google Scholar
    • Export Citation
  • 39

    Peel J & Osofsky HM , '‘A Rights Turn in Climate Change Litigation?’ ' (2018 ) 7 (1 ) Transnational Environmental Law : 37, 40.

  • 40

    ibid 62.

  • 41

    Carvalho DW de & Barbosa KS , '‘Litigância Climática Como Estratégia Jurisdicional Ao Aquecimento Global Antropogênico E Mudanças Climáticas’ ' (2019 ) 16 (2 ) Revista de Direito Internacional : 54, 63.

    • Search Google Scholar
    • Export Citation
  • 42

    Huang J & Tigre MA , '‘Trends in Climate Justice Litigation: The Dutch Case and Global Repercussions’ ', in RS Abate (ed), Climate Justice: Case Studies in Global and Regional Governance Challenges , (ELI , 2016 ) 578.

    • Search Google Scholar
    • Export Citation

    . See also Setzer and Vanhala, ‘Climate Change Litigation’ (n 14) 8.

  • 43

    Setzer and Benjamin, ‘Climate Litigation in the Global South’ (n 14) 85.

  • 44

    Pentinat SB , '‘La Justicia Climática: entre la tutela y la fiscalización de las responsabilidades’ ' (2013 ) 13 Anuario Mexicano de Derecho Internacional : 3, 46.

    • Search Google Scholar
    • Export Citation
  • 45

    ibid.

  • 46

    ibid.

  • 47

    Climate justice promotes adopting more equitable and just measures to prevent and mitigate disproportionate burdens suffered by the vulnerable communities of the Global South. See,

    Márquez DI & Pérez BF , '‘Anhelando justicia en la era del cambio climático: de la teoría a la práctica’ ' (2018 ) 9 (2 ) Revista Catalana de Dret Ambiental : 1, 3.

    • Search Google Scholar
    • Export Citation
  • 48

    S Gardiner, ‘Climate Justice’ (2012) in J Dryzek, R Norgaard, and D Schlosberg (eds) The Oxford Handbook of Climate Change and Society (Oxford University Press 2012) 310, doi:10.1093/oxfordhb/9780199566600.003.0021.

    Mattoo A & Subramanian A , '‘Equity in Climate Change: An Analytical Review’ ' (2012 ) 40 World Development : 1083.

  • 49

    Klinsky S, et al., ‘Why Equity is Fundamental in Climate Change Policy Research’ (2017) 44 Global Environmental Change 170, .

  • 50

    A Agostino and R Lizarde, ‘Gender and Climate Justice’ in W Harcourt (ed), Women Reclaiming Sustainable Livelihoods: Spaces Lost, Spaces Gained (Palgrave Macmillan 2012) <https://doi.org/10.1057/9781137022349_17>;

    Torres P et al. , '‘Is the Brazilian National Climate Change Adaptation Plan Addressing Inequality? Climate and Environmental Justice in a Global South Perspective’ ' (2020 ) 13 (2 ) Environmental Justice : 43 .

    • Crossref
    • Search Google Scholar
    • Export Citation
  • 51

    Setzer and Benjamin, ‘Climate Litigation in the Global South’ (n 14) 90.

  • 52

    Ulloa A , '‘Justicia Climática y Mujeres Indígenas en América Latina’ ' (2016 ) 47 (4 ) Environmental Justice and Climate Change in Latin America : 13.

    • Search Google Scholar
    • Export Citation
  • 53

    P Torres et al., ‘Is the Brazilian National Climate Change Adaptation Plan Addressing Inequality? (n 50) 44.

  • 54

    Coral-Díaz AM, Londonó-Toro B & Múnoz-Ávila LM , '‘El Concepto de Litigio Estratégico en América Latina: 1990–2010’ ' (2010 ) 121 Vniversitas : 49, 52.

    • Search Google Scholar
    • Export Citation
  • 55

    Peel and Lin, ‘Transnational Climate Litigation’ (n 3) 721.

  • 56

    ibid 693–4. See also Setzer and Benjamin, ‘Climate Litigation in the Global South’ (n 14) 81;

    Atapattu S & Gonzalez CG , '‘The North–South Divide in International Environmental Law: Framing the Issues’ ', in S Alam (ed), International Environmental Law and the Global South , (Cambridge University Press, 2015 ).

    • Search Google Scholar
    • Export Citation
  • 57

    Setzer and Benjamin, ‘Climate Litigation in the Global South’ (n 14) 81.

  • 58

    Budgetary constraints, understaffed agencies, and industrial and commercial lobbies hamper enforcement of environmental legislation. ibid 82.

  • 59

    Almost every LATAM country includes procedural elements to a constitutional and/or legal provision on the right to a healthy environment, including access to information, public participation, and access to justice and effective remedies. See Special Rapporteur ‘Report on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment’, A/HRC/43/53 (Report, December 2019).

  • 60

    PM Sariego and S Meckievi, ‘Análisis crítico de la judicialización del cambio climático y la baja economía en carbono frente a las categorías tradicionales del Derecho’ (2016) 240 Revista de Derecho: Universidad de Concepción <www.revistadederecho.com/pdf.php?id=3200>.

    • Search Google Scholar
    • Export Citation

    See also VL Bernardo, ‘Mudanças climáticas: estratégias de litigância e o papel do Judiciário no combate às causas do aquecimento global no contexto brasileiro’ (2017) 88 Revista de Direito Ambiental <https://dspace.almg.gov.br/handle/11037/25551>.

  • 61

    Tigre MA , '‘Implementing Constitutional Environmental Rights in the Amazon Rainforest’ ', in E Daly & JR May (eds), Implementing Environmental Constitutionalism: Current Global Challenges , (Cambridge University Press, 2018 ).

    • Search Google Scholar
    • Export Citation
  • 62

    Several Western European countries mention the environment in their constitutions, including Sweden (1974), Portugal (1976), Spain (1978), Austria (1984), Belgium and Germany (1994), and France (2004), see

    J Morand-Deviller, ‘L’Environnement dans les constitutions étranères’ [‘The environment in foreign constitutions’], Nouveaux Cahiers du Conseil constitutionnel, No. 43, April 2014, available at <www.conseil-constitutionnel.fr/nouveaux-cahiers-du-conseil-constitutionnel/l-environnement-dans-les-constitutions-etrangeres> accessed 31 October 2021,

    • Search Google Scholar
    • Export Citation

    see also JP Oury, ‘What Place Should the Environment Have in the Constitution’, European Scientist, published online 9 July 2018, available at <www.europeanscientist.com/en/editors-corner/what-place-should-the-environment-have-in-the-constitution/> accessed 31 October 2021.

  • 63

    Almost every LATAM country includes a constitutional and/or legal provision on the right to a healthy environment. See Special Rapporteur ‘Report on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment’, A/HRC/43/53 (Report, December 2019).

  • 64

    Tigre, ‘Implementing’ (n 61) 60.

  • 65

    See

    United Nations Human Rights Council, Res. 48/13 of 18 October 2021 <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G21/289/50/PDF/G2128950.pdf?OpenElement>,

    the right has previously been recognized in regional human rights treaties (LATAM, Africa) and in ‘sectoral’ treaties involving access to justice, information, and public participation in environmental matters (LATAM, Europe).

  • 66

    American Convention on Human Rights (Pact of San José) (entered into force 18 July 1978) 1144 U.N.T.S. 123.

  • 67

    UN High Commissioner for Human Rights, Independent Expert on Human Rights and Environment, ‘Mapping Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, Individual Report on the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights’ (Report No. 13, December 2013), pt 15 <www.ohchr.org/EN/Issues/Environment/SREnvironment/Pages/MappingReport.aspx>.

  • 68

    Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) (entered into force 16 November 1999) 28 ILM 156, Art 11; see

    Lewis B , Environmental Human Rights and Climate Change: Current Status and Future Prospects , (Springer , Singapore 2018 ) 73.

  • 69

    Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, United Nations publication (Escazú Agreement) (adopted 4 March 2018) LC/PUB.2018/8/-*.

  • 70

    Escazú Agreement, Art 1. See GNHRE, The GNHRE Blog Symposium and Webinar on the Escazú Agreement, <https://gnhre.org/the-gnhre-blog-symposium-on-the-escazu-agreement/>.

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  • 71

    ‘[C]ases invoking the right to a healthy environment tend to be concentrated in the Global South, with the majority in Latin America…’, see

    Moragues P de Vilchez, and Savaresi A, ‘The Right to a Healthy Environment and Climate Litigation: A Mutually Supportive Relation?’ (2021) SSRN Electronic Journal .

    • Crossref
    • Search Google Scholar
    • Export Citation
  • 72

    A Savaresi and J Setzer, ‘Mapping the Whole of the Moon: An Analysis of the Role of Human Rights in Climate Litigation’ (18 February 2021) <http://dx.doi.org/10.2139/ssrn.3787963>.

    • Search Google Scholar
    • Export Citation
  • 73

    A Rollo, ‘The Escazú Agreement: A Leap Forward for Environmental and Human Rights Protection in Latin America and the Caribbean’ (OpinioJuris, 11 April 2021) <http://opiniojuris.org/2021/03/11/the-escazu-agreement-a-leap-forward-for-environmental-and-human-rights-protection-in-latin-america-and-the-caribbean/>.

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  • 74

    Solicitada por la República de Colombia, Medio Ambiente y Derechos Humanos (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity: interpretation and scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/17,

    Inter-American Court of Human Rights Series A No 23 (15 November 2017), [59] <www.corteidh.or.cr/docs/opiniones/seriea_23_ing.pdf>.

  • 75

    Caso Comunidades Indígenas Miembros de la Asociación Lhaka Honhat (Nuestra Tierra) v Argentina Inter-American Court of Human Rights Series C No. 420 (6 February 2020).

  • 76

    Tigre MA, Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina (2021) 115 Am. J. of Intl’ L. 706.

  • 77

    ibid 709.

  • 78

    Tigre MA & Urzola N , '‘The 2017 Inter-American Court’s Advisory Opinion: Changing the Paradigm for International Environmental Law in the Anthropocene’ ' (2021 ) 12 (1 ) J. Hum. Rts. & Env’t. : 24.

    • Search Google Scholar
    • Export Citation
  • 79

    MA Tigre and V Lichet, ‘The CRC Decision in Sacchi v. Argentina’ (2021) 25(26) ASIL Insights (13 December 2021) <www.asil.org/insights/volume/25/issue/26.>.

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    • Export Citation
  • 80

    de Vilchez Moragues and Savaresi, ‘The Right to a Healthy Environment and Climate Litigation’ (n 71) have mapped out the cases that are specifically based on the right to a healthy environment. The Sabin Center’s database has, as of 7 March 2022, 80 rights-based cases <http://climatecasechart.com/climate-change-litigation/non-us-case-category/human-rights/>.

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  • 81

    Human Rights Council (n 65).

  • 82

    See, eg, A/HRC/43/53 (n 59).

  • 83

    J Setzer and C Higham, Global Trends (n 3) 33 <www.lse.ac.uk/granthaminstitute/wp-content/uploads/2021/07/Global-trends-in-climate-change-litigation_2021-snapshot.pdf>.

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  • 84

    Ganguly, Setzer and Heyvaert (n 33) 862.

  • 85

    Tribunal Ambiental de Chile <www.tribunalambiental.cl/historia/>.

  • 86

    C Fernández et al., Proyecto de Ley No. 047/2020C <www.camara.gov.co/tribunales-ambientales>.

  • 87

    L Burgers, ‘Should Judges Make Climate Change Law?’ (2020) 9 Transnational Environmental Law 55, 56 <www.cambridge.org/core/journals/transnational-environmental-law/article/should-judges-make-climate-change-law/D9B088113959571B24E97F5E976CA107>.

    • Search Google Scholar
    • Export Citation
  • 88

    E Daly & JR May (eds), Implementing Environmental Constitutionalism: Current Global Challenges , (Cambridge University Press , 2018 ) 7.

  • 89

    Boyd DR , The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment , (UBC Press , Vancouver 2012 ) 126.

  • 90

    Corte Suprema de Justicia, Sala Civil Especializada en Restitución de Tierras del Tribunal Superior del Distrito Judicial de Bogotá abril 5 2018, Sentencia 4360 (Colombia).

  • 91

    See

    May JR , '‘The Case for Environmental Human Rights: Recognition, Implementation, and Outcomes’ ' (2021 ) 42 Cardozo L Rev : 983, 1004.

  • 92

    This article mentions 37 cases in LATAM, including 18 related to the right to a healthy environment (section 4.2); 14 related to the rights of nature (section 4.3); four related to intergenerational equity (section 5.1); and one related to the right to stable climate (section 5.2). However, the analysis carried out here is not exhaustive, and there are more cases constantly being brought in the region.

  • 93

    J Peel and HM Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (n 39) 61–2.

  • 94

    See ie,

    MA Tigre, Brazilian’s First Tort Climate Case for Illegal Deforestation in Amazonia, Sabin Center Climate Law Blog, 16 June 2021 <http://blogs.law.columbia.edu/climatechange/2021/06/16/guest-commentary-brazilians-first-tort-climate-case-for-illegal-deforestation-in-amazonia/>.

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  • 95

    Tan Zhongchao , Air Pollution and Greenhouse Gases: From Basic Concepts to Engineering Applications for Air Emission Control , (Springer, Singapore 2014 ).

    • Search Google Scholar
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  • 96

    J West, S Smith, R Silva et al., ‘Co-Benefits of Mitigating Global Greenhouse Gas Emissions for Future Air Quality and Human Health’ (2013) 3 Nature Clim Change 885–9 <https://doi.org/10.1038/nclimate2009>.

    • Search Google Scholar
    • Export Citation
  • 97

    United Nations General Assembly, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (15 July 2019) 4, 6 <https://undocs.org/en/A/74/161>.

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  • 98

    J Mackenzie and J Turrentine, ‘Air Pollution: Everything You Need to Know’, NRDC June 22, 2021, <https://www.nrdc.org/stories/air-pollution-everything-you-need-know>.

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  • 99

    UNGA (n 97) 6.

  • 100

    Zhongchao Tan, Air Pollution and Greenhouse Gases (n 95) 14.

  • 101

    West et al., ‘Co-Benefits of Mitigating’ (n 96).

  • 102

    Prosecutor’s Office of São Paulo v United Airlines and others, Civil Appeal no. 0002920-10.2014.4.03.9999 (Brazil) [case pending].

  • 103

    Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renovaveis v Siderurgica Sao Luiz LTDA, Geraldo Magela Martins (2019) 1010603-35.2019.4.01.3800 (Brazil) [pending].

  • 106

    Juzgado Federal en los Criminal y Correccional [NRO 2], Sentencia FA19610000 14 mayo 2019 (caso Mendoza, Beatriz Silvia and others) (Argentina) <www.saij.gob.ar/juzgado-federal-criminal-correccional-nro-2-federal-buenos-aires-mendoza-beatriz-silvia-otros-estado-nacional-ejecucion-sentencia-fa19610000-2019-05-14/123456789-000-0169-1ots-eupmocsollaf>.

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  • 107

    ibid 4, 7.

  • 108

    ibid 7, 8.

  • 109

    Corte Suprema de Chile, Rol No. 22.523-99, Sentencia de Reemplazo 30 May 2007 <https://fima.cl/site/wp-content/uploads/2009/10/Fallo-Arica-_sentencia-de-reemplazo.pdf>. See also

    Fiscalía del Medio Ambiente, ‘Defensa de los Derechos Humanos: Caso Contaminación en Arica’ (FIMA, 2012) (Chile) <www.fima.cl/wordpress/2009/10/08/defensa-de-los-deerechos-humanos-caso-contaminacion-en-arica/>.

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  • 110

    Corte Suprema de Justicia, Rol No. 5888-2019, Sentencia 28 May 2019 <https://media.elmostrador.cl/2019/05/suprema-quintero.pdf> (Chile).

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    See also Boyd, The Environmental Rights Revolution (n 89) 139.

  • 111

    ibid 74–8. See also

    ‘Suprema ordena la mesa de la contaminación en Quintero-Puchuncaví e imputa toda la responsabilidad al Estado’, El Mostrador (28 May 2019) <www.elmostrador.cl/noticias/pais/2019/05/28/suprema-ordena-la-mesa-de-la-contaminacion-en-quintero-puchuncavi-e-imputa-toda-la-responsabilidad-al-estado/>.

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  • 112

    Superior Court of Justice, Public Prosecutor’s Office v Oliveira and others, No. 0215494-3 Decision (Brazil) (2009).

  • 113

    Superior Court of Justice, Maia Filho v Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis (IBAMA), Special Appeal No. 1000.731 – RO, Decision (Brazil) (December 2015).

  • 114

    Superior Court of Justice, Public Prosecutor’s Office v H Carlos Schneider S/A Comercio e Industria, Special Appeal No. 650.728 – SC (Brazil) Decision (October 2007).

  • 115

    MA Tigre, ‘COVID-19 and Amazonia: Rights-Based Approaches for the Pandemic Response’ (2021) 30(2) Review of European, Comparative & International Environmental Law 162 <https://onlinelibrary.wiley.com/doi/abs/10.1111/reel.12396>.

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  • 116

    Tigre MA , '‘Building a Regional Adaptation Strategy for Amazon Countries’ ' (2019 ) 19 International Environmental Agreements: Politics, Law and Economics : 411.

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    ; MA Tigre, ‘Cooperation for Climate Mitigation in Amazonia: Brazil’s Emerging Role as a Regional Leader’ (2016) 5 Trans. Envtl. L. 401. See generally MA Tigre, Regional Cooperation in Amazonia: A Comparative Environmental Law Analysis (Brill/Nijhoff 2017) <https://doi.org/10.1163/9789004313507>.

  • 117

    M Sandy, ‘The Amazon Rainforest is Nearly Gone’, Time (nd) <https://time.com/amazon-rainforest-disappearing/>.

  • 118

    J Bendel and T Stephens, ‘Turning to International Litigation to Protect the Amazon?’ (2021) RECIEL <https://doi.org/10.1111/reel.12387>.

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  • 119

    ibid 2.

  • 120

    Escazú Agreement (n 69) Article 19.

  • 121

    Two significant cases related to the protection of Amazonia, Future Generations and Alvarez, are analysed in the following section.

  • 122

    Carlos Schneider S/A (n 114).

  • 123

    ibid. See Peel and Lin, ‘Transnational Climate Litigation’ (n 3) 704.

  • 124

    Private Corporation for the Development of Aysen, et al. v Environmental Evaluation Service of Chile (Decision, January 2018) (Chile) Unofficial English summary available on World Climate Litigation Database: <https://climatelaws.org/cclow/litigation_cases?q=Private%20Corporation%20for%20the%20Development%20of%20Aysen,%20et%20al%20v%20Environmental%20Evaluation%20Service%20of%20Chile>.

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  • 125

    Corte Constitucional de Colombia [C.C.] [Constitutional Court] February 8, 2016, Sentencia No. C-035/16 (Demandantes: Alberto Castilla Salazar y otros) (Colombia) <www.corteconstitucional.gov.co/relatoria/2016/c-035-16.htm#_ftnref14>.

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  • 126

    Law No. 1753 of 2015, arts 49–52.

  • 127

    Sentencia C-035/16 (n 125).

  • 128

    Conselho Nacional do Meio Ambiente (CONAMA).

  • 129

    Supremo Tribunal Federal, Medida Cautelar Na Arguição de Descumprimento de Preceito Fundamental 747 Distrito Federal (ADPF 747) (Brazil) 28 October 2020, [24] <www.oeco.org.br/wp-content/uploads/2020/10/adpf-747-liminar-mono.pdf>; Supremo Tribunal Federal, Medida Cautelar Na Arguição De Descumprimento De Preceito Fundamental 748 Distrito Federal (ADPF 748) (Brazil) 28 October 2020, [25] <http://portal.stf.jus.br/processos/downloadPeca.asp?id=15344837742&ext=.pdf>; Supremo Tribunal Federal, Medida Cautelar Na Arguição De Descumprimento De Preceito Fundamental 749 Distrito Federal (ADPF 749) (Brazil) 28 October 2020, [24] <www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/adpf749.pdf>. See also

    MA Tigre and N Urzola, ‘Developing Brazilian Jurisprudence on the Right to a Healthy Environment’, GNHRE, 17 December 2020 <https://gnhre.org/2020/12/17/developing-brazilian-jurisprudence-on-the-right-to-a-healthy-environment/>.

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  • 130

    ADPF 747 [21], ADPF 748 [21], ADPF 749 [21].

  • 131

    ADPF 747 [16], ADPF 748 [16], ADPF 749 [9], [11].

  • 132

    ADPF 747 [15], ADPF 748 [12], ADPF 749 [14].

  • 133

    J Setzer and Délton Carvalho, ‘IEA v Brazil: Rights-Based Climate Litigation to Protect the Brazilian Amazon’, OxHRH Blog, April 2021 <https://ohrh.law.ox.ac.uk/iea-v-brazil-rights-based-climate-litigation-to-protect-the-brazilian-amazon/>.

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  • 134

    The Amazon Task Force (ATF) started to unite the Public Prosecutor’s offices combating deforestation. See

    J Setzer, G Leal and C Borges, ‘Public Prosecutors, Political Parties, and NGOs Are Paving the Way for Vital Climate Change Litigation in Brazil’ [25 November 2020] LSE <https://blogs.lse.ac.uk/latamcaribbean/2020/11/25/public-prosecutors-political-parties-and-ngos-are-paving-the-way-for-vital-climate-change-litigation-in-brazil/>.

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  • 135

    ibid.

  • 136

    Justiça Federal da 1ª Região PJe – Processo Judicial Eletrônico, Número: 1007104-63.2020.4.01.3200, ATF Court injunction (Brazil) 24 April 2020, [6], [7] <www.mpf.mp.br/am/sala-de-imprensa/docs/acao-ft-amazonia-tutela-antecipada-desmatamento-uniao>.

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  • 137

    Justiça Federal da 1ª Região PJe - Processo Judicial Eletrônico 7ª Vara Federal Ambiental e Agrária da SJAM, Número: 1007104-63.2020.4.01.3200, 23 April 2020, [II], [III], [X] <www.mpf.mp.br/am/sala-de-imprensa/docs/decisao-desmatamento-amazonia>.

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  • 138

    Tribunal Regional Federal da 1ª Região Pje – Processo Judicial Eletrônico, Número 1016745-72.2020.4.01.000, Corte Especial (Brazil) 2 June 2020 <https://s3.amazonaws.com/dinder.com.br/wp-content/uploads/sites/219/2020/06/Decisa%CC%83o_Tribunal-Regional-Federal-1-Regia%CC%83o.pdf>.

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  • 139

    Instituto Socioambiental, Abrampa & Greenpeace Brasil v Ibama and the Federal Union, Petition, Justiça Federal da 1a Região PJe, Número 1009665-60.2020.4.01.3200, 4 Junio 2020 <https://climate-laws.org/geographies/brazil/litigation_cases/instituto-socioambiental-abrampa-greenpeace-brasil-v-ibama-and-the-federal-union>.

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  • 140

    Ministério Público Federal v de Rezende, 7a Vara Federal Ambiental e Agrária da SJAM, Número 1005885-78.2021.4.01.3200 <http://climatecasechart.com/non-us-case/ministerio-publico-federal-v-de-rezende/>

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  • 141

    MA Tigre, Brazilian’s First Tort Climate Case for Illegal Deforestation in Amazonia (n 94).

  • 142

    PSB et al. v Brazil (on deforestation and human rights) (Brazil) Opened in 2020 <http://climatecasechart.com/climate-change-litigation/non-us-case/brazilian-socialist-party-and-others-v-brazil/>;

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    see also J Setzer and C Higham, who describe these cases as examples ‘where climate change was considered to be peripheral’, Global Trends (n 3) 14.

  • 143

    Supremo Tribunal Federal (STF), Caso ADO 59, PSB et al. v Brazil (on Amazon fund) (Brazil) (2020) [pending] <http://climatecasechart.com/climate-change-litigation/non-us-case/psb-et-al-v-brazil/>.

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  • 144

    Supremo Tribunal Federal (STF), Caso ADPF 708, PSB et al. v Brazil (on Climate fund) (2020) (Braz.) [pending] <http://climatecasechart.com/climate-change-litigation/non-us-case/psb-et-al-v-federal-union/>.

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    See also MA Tigre and A Goodman, ‘ADPF708/Climate Fund: What to Expect from Brazil’s First Public Hearing on Climate Policy?’, GNHRE Blog, 22 September 2020 <https://gnhre.org/2020/09/22/adpf708-climate-fund-what-to-expect-from-brazils-first-public-hearing-on-climate-policy/>.

  • 145

    Setzer et al., ‘Public Prosecutors, Political Parties and NGOs’ (n 134). See also,

    MA Tigre, ‘Brazil’s First Climate Case to Reach the Supreme Court’ Opinio Juris, published online 3 October 2020 <https://opiniojuris.org/2020/10/13/brazils-first-climate-case-to-reach-the-supreme-court/>

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  • 146

    Amazon fund case (n 143); Climate fund case (n 144).

  • 147

    UNGA (n 97) [44].

  • 148

    We use ‘new’ to signal that even though it is not the first time these rights have been recognized, their application in climate litigation is novel and significant to understanding regional claims.

  • 149

    T Challe, ‘The Rights of Nature – Can an Ecosystem Bear Legal Rights?’, Columbia Climate School State of the Planet Blog, published online 22 April 2021 <https://news.climate.columbia.edu/2021/04/22/rights-of-nature-lawsuits/#:~:text=According%20to%20the%20“Rights%20of,or%20even%20by%20climate%20change>.

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  • 150

    LC Pecharroman, ‘Rights of Nature: Rivers That Can Stand in Court’ (2018) 7 Resources 1, 9 <http://dx.doi.org/10.3390/resources7010013>.

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  • 151

    A Acosta and E Martinez, ‘The Rights of Nature as a Gateway to Another Possible World’ (2017) 8(4) Rev. Direito Práx., 2927–61 <www.scielo.br/scielo.php?script=sci_arttext&pid=S2179-89662017000402927&lng=es&nrm=iso>.

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  • 152

    Pecharroman, ‘Rights of Nature’ (n 150) 4;

    Tigre MA , '‘Environmental Law of Ecuador’ ', in E. Burleson (ed), Comparative Environmental Law and Regulation , (Thomson Reuters, 2013 ).

  • 153

    Constitution of Ecuador, Article 395-4 <www.acnur.org/fileadmin/Documentos/BDL/2008/6716.pdf>.

  • 154

    Included in the constitution (Brazil) or developed through case law (Colombia). See

    Leite JRM, Venâncio MD, ‘A Proteção Ambiental no Superior Tribunal de Justiça: protegendo o meio ambiente por intermédio da operacionalização do Estado de Direito Ecológico’ (2017) 38(77) Revista Seqüência – Estudos Jurídicos e Políticos 29, 37; Colombian Constitutional Court, C-339/12, 7 May 2002 <www.corteconstitucional.gov.co/RELATORIA/2002/C-339-02.htm>.

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  • 155

    Kauffman CM & Martin PL , '‘Constructing Rights of Nature Norms in the US, Ecuador, and New Zealand’ ' (2018 ) 18 (4 ) Global Environ. Polit. : 43, 50.

  • 156

    Tribunal Noveno de Garantías Penales, No. 09191-2015-0004, 23 April 2015 <www.derechosdelanaturaleza.org.ec/aletas-de-tiburon-galapagos/> (Galapagos Islands case); Juzgado Vigésimo Segundo de Garantías Penales de Pichincha, Acción Constitucional Medias Cautelares No. 0016-2011, 20 May 2011 (Esmeraldas Illegal Mining case) <www.derechosdelanaturaleza.org.ec/mineria-ilegal-esmeraldas/>; Corte Constitucional de Ecuador, Sentencia No. 166-15-SEP-CC, 20 May 2015 (Cayapas Shrimper case) <www.derechosdelanaturaleza.org.ec/camaronera-en-reserva-cayapas-esmeraldas/>; Corte Constitucional de Ecuador, No. 0567-08-RA, 16 July 2009 (Biodigestor case) <www.derechosdelanaturaleza.org.ec/biodigestor/>;

    Juzgado Segundo de lo Civil y Mercantil de Galápagos, Medida Cautelar Constitucional Juicio No. 269-2012, 28 June 2012 (Santa Cruz Road case) <www.derechosdelanaturaleza.org.ec/carretera-en-santa-cruz/>.

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  • 157

    CM Kauffman and PL Martin, ‘Testing Ecuador’s Rights of Nature: Why Some Lawsuits Succeed and Others Fail’, paper presented at the International Studies Association Annual Convention (Atlanta GA, 18 March 2016) 13 <https://static1.squarespace.com/static/55914fd1e4b01fb0b851a814/t/5748568c8259b5e5a34ae6bf/1464358541319/Kauffman++Martin+16+Testing+Ecuadors+RoN+Laws.pdf.>.

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  • 158

    ibid 13.

  • 159

    Cayapas Shrimper (n 156).

  • 160

    Corte Provincial de Justicia de Loja – Sala Penal, Juicio No. 11121-2011-0010, Decisión 30 March 2011 (Vilcabamba River case) <www.derechosdelanaturaleza.org.ec/vilcabamba/>.

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  • 161

    Wilson G & Lee D , '‘Rights of Rivers Enter the Mainstream’ ' (2019 ) 2 (2 ) The Ecological Citizen : 183, 185.

  • 162

    Constitutional Court of Colombia, Judgment T-622/16, 10 November 2016 (Atrato River Case) <https://delawarelaw.widener.edu/files/resources/riveratratodecisionenglishdrpdellaw.pdf>.

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    See also H Herrera-Santoyo, ‘The Rights of Nature (Rivers) and Constitutional Actions in Colombia’, GNHRE, 8 July 2019 <https://gnhre.org/2019/07/08/the-rights-of-nature-rivers-and-constitutional-actions-in-colombia/#_ftn3>.

  • 163

    Corte Suprema de Justicia de Colombia, No. STC3872-2020, 18 June 2020 <http://files.harmonywithnatureun.org/uploads/upload953.pdf>.

  • 164

    Alvarado PA Acosta & Rivas-Ramírez D , '‘A Milestone in Environmental and Future Generations’Rights Protection: Recent Legal Developments before the Colombian Supreme Court’ ' (2018 ) 30 (3 ) Journal of Environmental Law : 519 -26.

    • Search Google Scholar
    • Export Citation

    ; PV Calzadilla, ‘A Paradigm Shift in Courts’ Views on Nature: The Atrato River and Amazon Basin Cases in Colombia’ (2019) 15(0) Law, Environment and Development Journal 1–11 <www.lead-journal.org/content/19001.pdf>.

  • 165

    Tigre and Urzola, ‘Changing the Paradigm’ (n 78). OC-23/17 (n 74) [62], Lhaka Honhat case (n 75) [62], [63].

  • 166

    Lalander R , '‘Rights of Nature and the Indigenous Peoples in Bolivia and Ecuador: A Straight-Jacket for Progressive Development Politics?’ ' (2014 ) 3 (2 ) Iberoamerican Journal of Development Studies : 148, 169.

    • Search Google Scholar
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    . See also C Valladares and R Boelens, ‘Extractivism and the Rights of Nature: Governmentality, “Convenient Communities” and Epistemic Pacts in Ecuador’ (2017) 26(6) Environmental Politics 1015.

  • 167

    Kauffman and Martin, ‘Testing Ecuador’s Rights of Nature’ (n 157) 9. Sala Civil, Mercantil, Inquilinato y Residuales, Juicio No. 1711120130317, Decisión 20 June 2013 <www.derechosdelanaturaleza.org.ec/condor-mirador/>.

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  • 168

    Sala Civil, Mercantil, Inquilinato y Residuales (n 167) 11.

  • 169

    ibid 12.

  • 170

    ibid 13.

  • 171

    Kauffman and Martin, ‘Testing Ecuador’s Rights of Nature’ (n 157) 12.

  • 172

    See Pecharroman, ‘Rights of Nature’ (n 150) 6;

    P Burdon, ‘The Rights of Nature: Reconsidered’ (2010) 49 Australian Humanities Review 79 <http://dx.doi.org/10.22459/AHR.49.2010.04>

    • Search Google Scholar
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    and JB Reichmann, Evolution, Animal ‘Rights’ & the Environment (CUA Press 2000) 303.

  • 173

    Gonzalez CG , '‘Bridging the North-South Divide: International Environmental Law in the Anthropocene’ ' (2015 ) 32 Pace Envtl. L. Rev. : 407, 426.

  • 174

    Tigre, ‘Implementing’ (n 61) 70.

  • 175

    L Meyer, ‘Intergenerational Justice’ in EN Zalta (ed), The Stanford Encyclopedia of Philosophy (2014) <https://plato.stanford.edu/archives/sum2020/entries/justice-intergenerational/>.

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  • 176

    See Vilcabamba River case (n 160).

  • 177

    Rio Declaration on Environment and Development, principle 3.

  • 178

    Setzer and Benjamin, ‘Climate Litigation in the Global South’ (n 14) 87.

  • 179

    A tutela action generally enables citizens to seek immediate protection when violations of constitutional rights pose a risk of imminent harm to life or health, see Boyd, The Environmental Rights Revolution (n 89) 133.

  • 180

    Corte Suprema de Colombia, Demanda Generaciones Futuras v Minambiente (Colombia) 5 April 2018 <www.elaw.org/system/files/attachments/publicresource/Colombia%202018%20Sentencia%20Amazonas%20cambio%20climatico.pdf> 49.

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  • 181

    ibid 19.

  • 182

    ibid 20.

  • 183

    ibid 19.

  • 184

    ibid [12], [11.3].

  • 185

    ibid.

  • 186

    Corte Superior de Justicia de Lima, Demanda de amparo ambiental, Alvarez et al. v Peru (Peru) 10 December 2019, 42 <https://climate-laws.org/cclow/geographies/peru/litigation_cases/alvarez-et-al-v-peru> [pending].

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  • 187

    Plaintiffs’ claims regarding domestic violations arise under the Government’s plans in its National Policy on the Environment and the National Policy on Forests and Forest Wildlife, and others.

  • 188

    Plaintiffs’ claims regarding constitutional and regional violation arise under Peru’s Constitution Art. 2.22, Art. 11 of Additional Protocol of the American Convention on Human Rights.

  • 189

    Alvarez et al. v Peru (n 186) 50.

  • 190

    ibid.

  • 191

    The complaint has yet to be admitted by the Constitutional Tribunal.

  • 192

    Comunidad de Cañaral v Codeco División el Saldor (1988) S/ Recurso de Protección Corte Suprema de Chile, cited in Daly and May, Global Environmental Constitutionalism (n 19).

  • 193

    L Modelli, ‘Young People Sue Government for Climate “Pedalada” and Call for Annulment of Brazilian Goal in Paris Agreement’, Globo News, published online 14 April 2021 (Portuguese) <https://g1.globo.com/natureza/noticia/2021/04/14/jovens-processam-governo-por-pedalada-climatica-e-pedem-anulacao-de-meta-brasileira-no-acordo-de-paris.ghtml>.

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  • 194

    ADPF 747 [15], ADPF 748 [12], ADPF 749 [11].

  • 195

    Setzer and Benjamin, ‘Climate Litigation in the Global South’ (n 14) 89.

  • 196

    Auz, ‘Global South Climate Litigation’ (n 21).

  • 197

    ibid.

  • 198

    Pentinat (n 44) 74.

  • 199

    ibid 72.

  • 200

    ibid 40–41.

  • 201

    Institute of Amazonian Studies v Brazil [filed 2020, pending], Federal District Court of Curitiba, 4th Region, Brazil <http://climatecasechart.com/climate-change-litigation/non-us-case/institute-of-amazonian-studies-v-brazil/>. See

    Tigre MA, , Carvalho DW de, Setzer J, ‘IEA v. Brazil: When a Court Accepts the Legally Disruptive Nature of Climate Change’, Climate Law Blog, 21 December 2021.

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  • 202

    ibid 203.

  • 203

    ibid 204.

  • 204

    Bouwer and Setzer (n 29) 10.

  • 205

    Burgers (n 87) 73.

Contributor Notes

Email: mb4913@columbia.edu. The analysis of cases conducted in this article was updated up to March 2022.