By Juliana Lopes
The legal community has a fundamental role to accelerate the adoption of measures in the face of climate change, because the risk is growing for current and future generations if immediate actions are not adopted to limit the increase of the global temperature by up to 1.5 °C. There already exists a relative consensus in the legal community that inaction in the face of climate change – whether by governments or by companies – represents an infringement of universal rights. These are assured by the Constitution of many countries, such as the right to a balanced environment, to health, and to a dignified life.
Based on this premise, cases of climate litigation have been growing around the world. According to a survey by the Sabin Center , there are over 1,000 examples worldwide. This trend was discussed during the International Meeting on Climate Litigation, which took place on May 9, in Brasilia, promoted by the Institute for Climate and Society (iCS) and the German Embassy in Brasilia.
In the opinion of Ana Toni, the urgency of the issue is evident in the words of young Greta Thunberg, a young girl who is leading the movement of climate strikes so that her generation and the next generation have the right to a future. It was also reinforced in the recent report of the Intergovernmental Panel on Climate Change (IPCC), which was categorical in saying that there is only 12 years to reverse climate change.
She said that climate litigation is a consolidated international trend. And, although it is rarely discussed in Brazil, it is important to remember that the main international legal instrument related to the subject, the Climate Convention, was constructed here during Eco 92. “The aim is not to judicialize the discussion about climate change, but litigation can help Brazil to avoid setbacks, such as, for example, assuring consistency between entered into commitments, laws and practice.”
Lutz Morgenstern, from the German Embassy, recalled that this is still an advanced issue, which challenges different areas of knowledge, and so there is the relevance of discussing it. “Climate litigation is a new phenomenon that can already be observed in several countries of the world. Citizens sue their own countries because they believe that the state does not combat climate change with enough ambition. Lawsuits against companies have also grown. What does this phenomenon signify for justice, for democracy, and for the courts? Litigation is an issue of today,” he stressed.
Emblematic cases
In the presentation of Killian Doherty, legal associate at the Environmental Law Alliance Worldwide (ELAW), an overview was given of cases of climate litigation around the world. The panelist demonstrated to the audience the concept of the Sabin Center about climate litigation and emblematic cases involving climate and rights, such as the fishermen against Chevron, in the Philippines; New York versus Exxon for climate damages, as well as actions on the African continent.
Valentina Rozo, a researcher at Dejusticia, from Colombia, discussed the power of future generations: looking at the Colombian case, she explained how the Colombian Amazon was transformed by laws, in 2018, and how this accelerates the processes of protection and legal judgment that enable the self-management of the forest and the biodiversity. The action was initiated by a group of 16 cities, in order to reduce the deforestation levels to guarantee a secure future. “The government is primarily responsible for the increase in deforestation and greenhouse gas emissions, because this increased by 44% [CF1] in only one year. Therefore, it is very unlikely that the government is complying with its commitments to the Paris Agreement. The omissions threaten the right to a healthy environment. This directly affects future generations and those who live in the Amazon region,” she declared.
Noah Walker-Crawford, legal consultant for the Foundation for Sustainability (Stiftung Zukunftsfähigkeit), presented the case of a Peruvian farmer who sued RWE, the largest energy company of Germany. The company was held liable for its high emissions and the threats to the local community, because of the risks of flooding due to the melting of glaciers in the Andes. “On the day of the judgment, RWE lost over one million euros in market value on the stock market. Consequently, large investors are beginning to pay attention to this. We will not resolve the climate issues but we created an important precedent. This type of litigation is a way to exert pressure to increase the climate ambition,” explained Walker-Crawford.
Ellie Mulholland, a director of Commonwealth Climate and Law Initiative (CCLI), from the United Kingdom, spoke about the growing concern of global investors in relation to the financial implications of climate change. She brought examples of petitions from investors pressuring companies with high emissions to disclose the climate risks. This was the case with Exxon, which was pressured by investors for misleading disclosures in relation to assets that were considered stalled, or that could not be exploited in scenarios of pricing of the emissions by means of taxation and/or market mechanisms. “The businesses and investors who invest in them would not have a very good performance if their investments were under water. Therefore, the integration of the climate risks in decision making is a matter of fiduciary duty of the directors of funds and companies,” she declared.
In the closing speech of the event, Antonio Herman de Vasconcellos e Benjamin, an appellate judge from the Superior Court of Justice, argued that climate litigations have an educational character. “For example, companies have a legal duty to record in their balance sheets and to disclose amounts that are in litigation to their shareholders. Therefore, at board meetings, shareholders can insist on due diligence measures to preserve the assets of the company against climate risks,” he stated.
The event also included contributions from Ana Maria de Oliveira Nusdeo, president of the institute “The Right for a Green Planet” (IDPV) and professor of the law faculty at the University of São Paulo (USP); Joana Chiavari, senior analyst at the Climate Policy Initiative (CPI) spoke about the characteristics of Brazilian law in cases of climate litigation; Fabio Feldmann, lawyer and ex-parliamentarian; Pedro Hartung, lawyer and coordinator of the Absolute Priority Program of the Alana Institute; Gabriel Wedy, federal judge and author of the book “Litígios Climáticos no Direito Brasileiro”; Nivio de Freitas, deputy federal attorney general from the Federal Prosecution Office (MPF); and Maria Christina Gueorguiev, lawyer at Pinheiro Neto Advogados.
The contributions can be seen in the recording of the event, which is available on the YouTube channel of the iCS – Institute for Climate and Society . Individual interviews with the speakers will also be available on the website of Sustainable Future Dialogues .
Climate litigation in focus
On May 25, iCS and the Law Institute of the Green Planet (IDPV) organized a launch event with the same subject. The work “Climate litigation: New frontiers for Environmental Law in Brazil,” which is the first of its genre in Brazil. Coordinated by Joana Setzer, Kamyla Cunha and Amália Botter, the work includes articles by 35 experts on the subject, such as Alice Amorim Vogas (iCS), Délcio Rodrigues (ClimaInfo), Iago Hairon (Engajamundo) and Sergio Leitão (Instituto Escolhas).
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