In Chile there have been no actions filed against the state for their climate policy on the grounds of inadequate mitigation and adaptation to climate change directly. This may be due to the fact that the discussion has been focused inside the Congress (since 2020) regarding the Bill Project of the Climate Change Framework Law. The legislative processing of the law was preceded by a citizen participation process initiated by the Environmental Ministry in 2018, where different actors expressed their opinions before the authorities. Moreover, Chile has been relatively active in the topic within the international and national stage, assuming its own contribution to climate change. On the other hand, in Chile it is unusual to litigate against the lack of public policies.     

Despite this, there have been remarkable cases relating to issues on adaptation regarding violations of human rights caused by climate change impacts and the deficiencies in the State response, capacity, regulations and policies where climate change is not the main point, but it is a ground of the conflict. Those cases have been channelled through constitutional actions. Indeed, in Chile any citizen can file a case against the government through the “Recurso de Protección” (constitutional action) against arbitrary or unlawful acts or omissions that deprive, disrupt or threaten the legitimate exercise of some of the rights and guarantees set forth in Article 19 of the Constitution such us the right to life and the physical and psychological integrity of the person (Art. 19 no. 1), arbitrary non-discrimination (Art. 19 no. 2), the right to live in an unpolluted environment (Art. 19 no. 8), the right to develop any economic activity (Art. 19 no. 21) or the right to property (Art.19 no. 24). This action aims to immediately adopt the necessary measures to re-establish the rule of law and ensure the due protection of the affected party, notwithstanding any other rights that may be asserted before the relevant authority or courts.

The main relevant case (“S.T.T.N2 de Marineros Auxiliares de Bahía de Pto. de Tocopilla v. Ministerio De Energía”) refers to three workers unions of thermoelectric plants, that filed a protection action against the Ministry of Energy for a reform to a Decree No. 62/2006 “Regulation of Power Transfers between Generating Companies established in the General Law of Electric Services” that seeks to accelerate the gradual closure of thermoelectrical plants. The workers indicated that their source of employment depends directly or indirectly on the generation of energy based on coal, which is why this act is illegal as it does not contemplate measures in their favour for, specifically, a labour reintegration. The Supreme Court accepted the constitutional action, ruling that mitigation measures must comprehend a “just transition”, which must include the environmental, social and economic effects of climate change. It affirms that, along with the technical grounds, the authority must be especially diligent and concern itself with the social acceptance of the measure and the protection of the most vulnerable citizens. Therefore, it orders the authority to implement a just transition public policy in favour of climate change mitigation which will consider workers, in the shortest possible time.

In a second relevant case (Sindicato Trabajadores Independientes Pescadores Artesanales v National Fisheries and Aquaculture Services and 3 others), a group of small-scale fishermen file a constitutional action against the maritime authority (DIRECTEMAR), the fishing authority (SERNAPESCA), and Environmental Authorities (Ministry of the Environment and Superintendency of Environment) for the dumping of 9,000 tonnes of dead salmon into the sea which, together with the increase in sea temperature, triggered the phenomenon known as “red tide”. The Supreme Court found that there was a lack of technical grounds for authorising the dumping into the sea, considering the complex environmental and climatic context which violated the constitutional rights to live in a pollution-free environment (Art. 19 no.8 of the Constitution). The Supreme Court hold that authority must act preventively on those complex and risk scenarios and must take their decisions based on scientific evidence. With this case, the Supreme Court imposed a high standard public policy decision, which must take into account the effects of climate change.

The third (Gallardo v Anglo American Sur S.A.) and fourth (Instituto Nacional de Derechos Humanos v Gobernación Provincial de Petorca) case spotlighted are related to the desertification of an extended region in Chile due to the impact of climate change. The Supreme Court hold that the authorities must take enough measures to provide at least 100 liters of drinkable water to people living in places facing extreme droughts, otherwise, they are infringing the human right to life and water. Even when the Constitution and regulations doesn’t recognise the human right to water, Supreme Court hold that it is justiciable, and it must be respected even though the law authorise to private actors to use the water of the rivers. The parliamentary discussion on this matter has been reactivated since those cases, with climate change as the main cause of droughts, as an assumption.

In all these cases, the fundamental rights and the constitutional protection action presents itself as a suitable means of jurisdictional intervention for people whose rights could eventually be affected by the impacts of climate change.

Considering the recent developments in Chile, future cases could increase depending on (i) the approval of a new Constitution and the new standard, rights, values and future institution; (ii) the implementation of adaptation measures, especially related to water access; (iii) the evolution of effects of Climate Change in Chile in relation with the natural vulnerabilities and risks of the country; and (iv) disproportionally affected places by industrial complex like coal plants.

To this date, there is only one case challenging Czech Republic’s national climate policy. This can be explained by several reasons:

  • There is no specific national law dealing with climate change;
  • Climate policy is mostly embodied by the air pollution legislation and emissions trading regulation;
  • Procedural law requirements remain an obstacle to environmental action popularis, as an applicant has to show that their individual rights have been affected in order to bring a case to the court;
  • Large parts of the Czech climate change regulation are legally non-binding.

In Klimatická žaloba ?R v. Czech Republic, an ongoing case submitted to the Prague Municipal Court in April 2021, plaintiffs claim the failure of the government to act has led to unlawful interference with their subjective rights which are guaranteed by the Czech Constitution.

In general, there are two potential avenues for climate cases under this scenario:

First, regarding constitutional rights and access to the Constitutional Court, a petition proposing the annulment of a statute, or individual provisions thereof, may be submitted by the President, a group of at least 41 Deputies or a group of at least 17 Senators, a Panel of the Court deciding a constitutional complaint, the government or anyone who submits a constitutional complaint. This means that for individuals and NGOs, the access to the Constitutional Court is restricted to a specific case and a violation of their constitutional rights listed in the Czech Charter of Fundamental Rights and Freedoms. The protection of ownership and privacy is often invoked in environmental cases. The Charter also grants the right to a favourable environment (Art. 35), but its significance is diminished by Art. 41 which stipulates that it is enforceable merely through and in the scope of regular laws implementation.

Second, regarding Administrative Courts, an individual or NGO can bring a case against a public actor that allegedly does not comply with its climate change obligations. Four main types of judicial protection are provided by the administrative courts: an action against a decision of an administrative authority, protection against a failure to act, protection against unlawful interference, and judicial review of Measures of a General Nature (MGN). However, not all of these judicial routes enable individuals to challenge an overall act or omission by the legislator or government. Indeed, only the last three options can apply to this scenario.

Regarding actions challenging a MGN – which is defined as neither a piece of legislation nor an administrative decision – there is no administrative appeal allowed and the only possible legal remedy against a MGN is via judicial review. According to § 101a of the Czech Administrative Justice Code, any person who claims infringement of their rights by an MGN, is entitled to file a legal action against it. The standing of NGOs has been established by Czech Constitutional Court in its Decision No. I.ÚS 59/14. The scope of the review encompasses both procedural and material issues, but is restricted to the rights of the plaintiff. In addition, in the case of unlawful interference, the court would have to agree that the inability or unwillingness of the state to comply with international climate change obligations would result in such interference.

Finally, in the case of protection against a failure to act, its scope is restricted to the omission to adopt a decision in administrative proceedings. As a consequence, it cannot be used against the lack of will to adopt a specific policy or a MGN.

No litigation has been initiated in the Philippines by individuals to challenge the government’s overall climate policy for not complying with its international climate change obligations. Some cases have been filed challenging sectorial or specific laws related to climate change.

The absence of more systemic cases could be attributed, on one side, to the lack of private rights or a private right of action in the Paris Agreement or the NDC. On the other side, it could be attributed to the considerable leeway that the NDC leaves to the government in conditioning its compromises to the reception of financial resources and technology transfer following the common but differentiated responsibilities (CBDR) and respective capabilities principle.

Beyond this, some routes can be identified as possibly central to make the government accountable for its climate overall response. The Philippines has a dualist legal system, which means that international treaties must be made part of Philippine law to be valid and effective. Once it is part of domestic law, courts have the power to review its constitutionality or validity. This means that an individual who thinks that the Philippines’ NDC fails to protect their constitutional rights can pursue judicial/constitutional review. On the other hand, the National Climate Change Act 2009 established a Climate Change Commission with the function of formulating a Framework Strategy on Climate Change. The Framework identifies key sectors with significant mitigation potential and sets out goals and responsibilities for ministries and regulatory agencies but does not include quantitative targets. The law establishes that the Framework shall be formulated in accordance with international commitments. That gives the opportunity to challenge, for example, the Strategy’s level of ambition compared with the goals internationally agreed.

In this jurisdiction, one of the most relevant pathways to demand environmental protection is through the constitutional right to a healthy environment. Article II (Section 16) of the Philippines Constitution provides that “[t]he State shall protect and advance the right of the people to a balanced and healthful ecology in accordance with the rhythm and harmony of nature”. In 2009, the Philippine Supreme Court crafted a set of procedural rules to facilitate the protection of the people’s constitutionally enshrined rights to life and a healthy environment: the Rules of Procedure for Environmental Cases. They govern procedures in civil and criminal cases in the first and second-level courts that involve alleged violations of environmental laws, rules, and regulations. Particularly notable is the introduction of the Writ of Kalikasan (Writ of Nature). Petitioners can apply for a Writ of Kalikasan to be issued when the alleged environmental damage is of such magnitude that it adversely affects the life, health, or property of inhabitants in two or more cities or provinces. It is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated or threatened by an unlawful act or omission of a public official or employee, or private individual or entity.

Global Legal Action on Climate Change v the Philippine Governmentwas the first climate-related lawsuit using the Writ of Kalikasan. The action was brought to compel the government to implement a law (Republic Act 6716) and construct rainwater collectors in every village throughout the country as an effective climate adaptation measure. Eventually, a work plan was submitted to the Supreme Court and a Memorandum of Understanding was signed to carry out the construction works. Its implementation was to be subject to monitoring by the Supreme Court.

Another relevant decision is Victoria Segovia et al. v Climate Change Commission et al. In this case, a group of citizens, including children of the future, alleged that the failure of the government’s departments to implement the ‘Road Sharing Principle’ (part of the Framework Strategy on Climate Change) has resulted in the continued degradation of air quality, in violation of petitioner’s constitutional right to a balanced and healthful ecology. Interestingly, the court found that the Rule of Procedure for Environmental Cases (i) had liberalized the standing rules, being sufficient for a Writ of Kalikasan that the petitioner represents the inhabitants prejudiced by the environmental harm, and (ii) allowed direct resort to the Supreme Court, being within this court’s discretion whether to accept petitions brought directly before it. However, the petition failed as the court found that the plaintiffs failed to show that the defendants were guilty of any unlawful act or violation of environmental laws that constitutes a violation of their environmental right. A petition for the Writ of Kalikasan must clearly establish the breach of specific environmental laws, rules, and regulations and not merely contain repeated invocation of the constitutional right and bare allegations that it was violated. In this sense, individuals that want to bring a case against public actor for allegedly failing to comply with climate obligations should focus on enforcing, inter alia, quantitative targets such as those found in the NDC, instead of the broad policy strategies laid out in the Framework Strategy and related climate action plans.

To date, no climate change litigation has been brought by a citizen(s) challenging Slovenia’s climate policy. However, a claim could be based on the following grounds:

  • Constitutional rights:
    • Article 72 of the Slovenian Constitution grants the right to a healthy living environment. This right can be violated by continuous changes in the climate. The State has an obligation to protect this right and any violation can form the basis for litigation.
    • Article 70a grants the right to drinking water. Climate change projections for Slovenia indicate serious drought in the summer months, meaning that drinking water resources will become scarcer. The State has an obligation to take appropriate action to prevent the reduction of this resource.
    • Pursuant to Article 24 of the Constitutional Court Act, individuals may file a petition for review of constitutionality or legality of regulations or general act, which grants individuals the right to access court if they believe that a climate policy or law violates the rights mentioned above.
  • The Environmental Protection Act 2004 (EPA):
    • Article 14 grants individuals the right to request the court to discontinue an activity affecting the environment if it causes, or would cause, an excessive environmental burden, or presents, or would present, a direct threat to human life or health. Enactment of an insufficient climate policy could arguably be an activity by a public authority affecting the environment, which could be challenged in court.
    • The EPA requires public participation in environmental decision making and grants individuals the right to participate in preparation of environmental policies and regulations (Article 13). If a climate policy is developed without proper public participation, then litigation can be pursued.
    • Pursuant to Article 14 of EPA, the Human Rights Ombudsman may launch an investigation relating to violation of environmental rights by an act of a public authority and if a violation is confirmed, prepare a report with recommendations. This opens the door for the Ombudsman to investigate whether a Climate Policy is in violation of the right to a healthy living environment. However, there is a requirement for proof of an injured party from the violations, which could prevent proceedings, as climate change generally affects populations, as opposed to causing specific and direct damage to an individual or group of individuals.

The Constitutional Court can remedy a breach of constitutional right through a declaration of unconstitutionality. Additionally, the Administrative Court can remedy breaches of the EPA through the discontinuation of an activity affecting the environment Finally, the Ombudsman can prepare a report with recommendations to all parties involved, including public authorities.

In terms of locus standi, claimants in constitutional matters have to demonstrate a legal interest. This can be demonstrated if the challenged regulation or general act directly interferes with the claimants’ rights, legal interests, or legal position (Article 24 of the Constitutional Court Act). While the court has found that a professional association involved in ecosystem protection has standing to challenge constitutionality of a municipal ordinance (case U-I-30/95), legal interest is generally interpreted narrowly and in restrictive manner. Claimants have to show a sufficiently direct and concrete effect (case U-I-113/00). Courts have also rejected a NGO’s legal interest on the ground that the general assertion that they live and work in the area of a local community does not constitute their right to challenge constitutionality of a municipal ordinance (case U-I 255/00) .

Possible reasons for the lack of climate change litigation could be difficulty of proving legal standing and the difficult and costly manner of gathering sufficient evidence to prove the case.

While no climate change litigation has been brought by citizen(s) challenging Israel’s national climate policy or law, the following grounds could be used for a basis:

  • Constitutional grounds: under Israeli Basic Laws which form the constitution of the Country, Citizens have a right to dignity, liberty and property. In 2002 the Supreme Court was called to discuss the right to dignity, liberty and property and the right to a clean environment in the case of The Israel Union for Environmental Defence V. The Government of Israel, HCJ no. 4128/02. The Court was asked whether the text of the Basic Law could be construed to include the right to an adequate environment. The Supreme Court found that the right to a clean environment cannot be derived from the right to human dignity and liberty, but recognized the constitutional right to a “minimal environment”. The term “minimal environment” was not further defined and was left for to broad interpretation.
  • National Legislation: Under the Clean Air Act Citizens can bring an action against the State if the State has been found to have committed an act or omission which results in air pollution.  The definition of air pollution under the Act includes substances like carbon dioxide and methane resulting from combustion so the connection to climate change could be argued. The Protection of the Coastal Environment Law 5764-2004 does not specifically deal with climate change, however it places obligations on The Drainage Authority to prepare plans for each river or any  water source within its territory. These plans must factor in the sustainable use of these resources to address the needs of future generations.
  • International obligations: The Israeli Court in Custodian of Absentee Assets v. Samara et al. Civil Appeal No. 147/55 ruled that international customary law is automatically incorporated into Israeli National Law. However, international treaties which Israel has signed must be incorporated into national legislation.

Under the Clean Air Act a court can award damages to citizens who have suffered loss due to the breach of obligations under the Act. The Clean Air Act also places an obligation on the Israeli Government to create and implement a National Pollution Reduction & Prevention Program. If such a programme is not created, the Government can be ordered to do so, as happened in the case of The Israel Union for Environmental Defense v. The Government of Israel, HCJ No. 1092/12.

The Locus Standi requirement is broad. Under the Clean Air Act any citizen can bring forward an action if they have suffered damage.  Individual citizens can gain standing under the Israeli Basic Law for human rights claims.

Absence of more cases can be attributed to the fact that Climate Change Law is currently in its ‘teething stage’ in Israel. 

In Germany, there have been several cases where citizens or NGOs filed lawsuits against the State alleging that its inadequate climate change mitigation policy violates national law.

In Family Farmers and Greenpeace Germany v. Germany (VG, Berlin, 2019)before the administrative court of Berlin claimants alleged that by abandoning its 2020 mitigation target the government had acted unlawfully in view of the general principles of self-binding administration as well as fundamental rights. However, the court dismissed the case due to a lack of standing. It held that, while the government’s climate policy is generally justiciable, the specific target was non-binding and internal, and a violation of fundamental rights was not substantiated.

The 2021 landmark decision by the Federal Constitutional Court (BVerfG, 2021), concerned the argument that the Federal Climate Protection Act’s target of reducing greenhouse gas emissions by 55% by 2030 from 1990 levels violated fundamental rights of the claimants and did not sufficiently take into account Germany’s obligations under the Paris Agreement. The claimants inter alia challenged the compatibility of the Climate Protection Act with Article 20a of the German Constitution (Basic Law – BL), stipulating the aim to protect the environment for future generations. The Constitutional Court found the claims to be partly justified and held that Article 20a BL obliges the legislator to protect the climate and pursue efforts towards climate neutrality, particularly with a view of future generations. The legislator had failed to distribute the burden of the remaining carbon budget on the path towards climate neutrality proportionally along the remaining years, so that harsher future intrusions into fundamental rights may constitute an undue burden. Therefore, the Court ordered the legislator to set clear provisions for reduction targets for the whole period until climate neutrality will be reached.

Following this decision, the NGO Deutsche Umwelthilfe filed lawsuits against the German Federal Government, requesting the adoption of a specific and adequate climate protection programme that meets the cross-sectoral greenhouse gas emissions and the targets for the transport sector laid down in the Climate Protection Act. Moreover, with support of the same NGO, eight lawsuits were filed with regards to lacking regional Climate Protection Acts in the respective federal States in Germany. Claimants seek an order for the establishment of such acts, and/or for their targets to be aligned with the goals of the Paris Agreement.

In general, individuals may allege a violation of their own fundamental right before the Constitutional Court under Article 93 I Nr. 4 a BL. Similarly, in administrative proceedings, individuals need to substantiate an infringement of a subjective right. The prerequisite of individual concern can be challenging for claimants in climate change cases, where a concrete violation may be hard to pinpoint and often only materialises in the future. Only certain State organs may challenge the legality of climate laws or policies based on violations of non-subjective legal norms (Article 93 I Nr. 2 BL, e.g. BVerfG, 2007).

According to § 3 Environmental Remedies Act (Umwelt-Rechtsbehelfsgesetz) only recognized associations have standing, but only where cases covered by § 1 Environmental Remedies Act are concerned. Alternatively, associations may argue that they have a right of action based on procuration provided that an individual would have standing. A right of action by Greenpeace based on the CJEU’s jurisprudence (CJEU, 2017) had been rejected in Family Farmers and Greenpeace Germany v. Germany, because the challenged German Climate Protection Goal 2020 had not been based on European provisions (e.g. VG Berlin, 2019).

With regards to the legal basis, the German Basic Law does not include an explicit or implicit right to environmental protection that goes further than what can be inferred from the respective substance of the various fundamental rights. Claims may in particular be based on Article 2 II 1 BL, which stipulates the right to life and physical integrity, on Article 14 I BL, which guarantees property, as well as on Article 12 I BL, which protects professional freedom. Under aggravated circumstances, even Article 1 BL containing the right to human dignity might be invoked, which, in conjunction with Art. 2 I and 20a BL has been labelled as the ecological minimum standard of living by several scholars and been discussed by the Constitutional Court in its 2021 landmark decision. That decision particularly  underlined the importance of Article 20a BL and is likely to be used in many future cases. In light of Art. 20a BL the Court understood relevant fundamental rights as ‘intertemporal guarantees of freedom [that] afford the complainants protection against comprehensive threats to freedom caused by the greenhouse gas reduction burdens […] being unilaterally offloaded onto the future’ (BVerfG, 2021, para. 183). However, the Court reaffirmed what it had already stated in an earlier relevant decision concerning emission reductions under the EU emissions trading system (BVerfG, 2007): The legislator has a wide margin of discretion as to how to implement Article 20 a BL.

Remedies sought may take the form of a declaration of unlawfulness of the challenged national policy and the obligation to restore legal compliance (e.g. Family Farmers and Greenpeace Germany v. Germany), or an order to amend the challenged law (e.g. BVerfG, 2021).

No climate litigation has been brought by a citizen/group of citizens challenging Denmark’s national climate policy. Several reasons could be suggested for this lack of litigation. To have standing, the claimant must have sufficient individual and significant interest. Abstract claims will not be admitted. In Denmark, this includes a claim that the Danish government has failed to comply with its climate change obligations. There are also other possible reasons, such as the risk of having to pay the costs of the opponent in Danish courts, the lack of courts that specialise in environmental or climate law and the lack of a fundamental right to a healthy environment in the Danish Constitution.

In New Zealand, litigants have brought cases alleging that the state’s climate policy does not adequately contribute to climate change mitigation efforts or provide for adaptation to climate change. The following cases illustrate circumstances under which private actors have sought judicial review of implementation of New Zealand’s national climate policy.

Litigants have sought judicial review of decisions relating to implementation of New Zealand’s climate specific legislation, the Climate Change Response Act.  In 2019, amendments in the Climate Change Response (Zero Carbon) Amendment Act (2019/61) introduced the goal of carbon neutrality by 2050 and established He Pou a Rangi, the Climate Change Commission, to advise government. In 2021, Lawyers for Climate Action New Zealand (LCANZI) initiated proceedings seeking judicial review of the Commission’s recommendations to the Minister for Climate Change (Lawyers for Climate Action NZ v. The Climate Change Commission ). The group alleges that the Commission’s recommendations for emissions budgeting violate the Act and the government’s obligations under the Paris Agreement. For example, the group asserts that the Commission’s emissions budgets are inconsistent with holding warming to 1.5C and that the Commission misplaces reliance on uncertain offshore mitigation. That action is currently pending in the High Court of New Zealand.  

Challenges to government action in New Zealand courts frequently take the form of proceedings seeking the judicial review of decisions by the executive branch of government, including those based on established common law grounds. In the climate change arena, these types of cases are likely to encounter the doctrine of non-justiciability, which excludes the Courts from looking into public policy matters that the executive branch of government is uniquely placed to address. However, the High Court’s decision in 2018 in Thomson v Minister for Climate Change Issues, signalled that courts in New Zealand may be inclined to adjudicate challenges to national climate policies provided that they can be framed within the limits of justicability. Thomson noted that domestic courts elsewhere had declined to view the entire subject matter as non-justiciable, whether because of the social, economic and political dimensions, scientific complexity, international legal character or global nature of the climate change problem.

The Thomson decision also indicates that the New Zealand courts will engage with complex expert scientific evidence in reviewing whether New Zealand has complied with its statutory and international obligations.  Plaintiff Sarah Thomson, then a law student, asserted New Zealand’s emissions reductions targets had breached domestic and international obligations.  Thomson’s first claim complained about the faliure of the Minister to consider reviewing New Zealand’s 2011 target of a 50% reduction in greenhouse gas emissions by 2050 and set an appropriate new target if needed, following the release in 2015 of the Fifth Assessment Report (AR5) of the Intergovernmental Panel on Climate Change (IPCC). Thomson argued successfully that the Minister had failed to exercise properly the discretionary power to review the climate change target set by the Minister under section 224 of the Climate Change Response Act of 2002. However, although the Court found in favour of Thomson, the Court deemed relief unnecessary and of “historic interest only,” as the newly elected Government had since announced its intention to set a new 2050 target. As to the remaining claims challenging New Zealand’s Nationally Determined Contribution as set under the Paris Agreement in the exercise of the Crown’s prerogative powers, which were brought for review on common law grounds, the Court found that the appropriate decision-making processes had been followed and no reviewable error had occured that warranted intervention.

Courts have also weighed in on local government resolutions concerning climate change. In Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council, the New Zealand High Court recently considered whether a district council properly assessed and considered a Local Government Leaders’ Climate Change Declaration.  The High Court quashed the council decision to decline to approve the declaration for mayoral signature, noting the effects of climate change are of highest public importance, and the council was required to undertake a proper assessment of the climate change issues following the statutory process applicable to local government decision making.

Remedies that could be sought in future cases include: requesting that the State be called to maintain its international commitments, reviewing its NDCs on the basis of the most up-to-date scientific evidence on climate change and modifying them where necessary (writ of mandamus), and the invocation of the duty for the State to review and update the national targets, both on the basis of the scientific reports made available to the IPCC and on the basis of the Zero Carbon Bill.

Proceedings for inadequate action to address climate impacts are also possible against the government before the Waitangi Tribunal, a permanent Commission of Inquiry with recommendary power that arise from promises made in the Treaty of Waitangi signed by M?ori chiefs and the Crown in 1840. Representatives of the Mataatua District Maori Council have initiated proceedings alleging that New Zealand has breached its obligations to M?ori by failing to implement policies that will address climate change. The claimants seek to establish that government policies are leading to adverse climate impacts, relying on provisions of the Waitangi Treaty that make the government responsible for the “active protection” of natural resources such as forests and fisheries on behalf of M?ori, to argue a breach of an obligation has occurred. The action remains pending.

Private actors may also seek review of implementation of climate policies on human rights grounds. Under New Zealand’s constitutional system, compliance with both domestic and international human rights law would be most likely raised within the context of judicial review. Human rights concerns could generate mandatory relevant considerations for administrative decision-makers, and under the New Zealand Bill of Rights Act 1990, could require the interpretation of climate change or other legislation and regulations consistently with the civil and political rights protected in the Act. There could potentially be circumstances giving rise to claims of discrimination under the Bill of Rights Act 1990or the Human Rights Act 1993, concerning the right of ethnic minorities to enjoy their culture, again most likely to come before the courts in the context of judicial review. 

Legal proceedings also have addressed New Zealand’s application of immigration policies to those displaced by climate impacts. In Teitiota v Ministry of Business Innovation and EmploymentNew Zealand courts denied a challenge to the government’s decision on the asylum claim of a Kiribati citizen seeking asylum in New Zeleand on the basis that the effects of climate change and sea level rise forced him to migrate. Teitiota subsequently filed a communication with the UN Human Rights Committee, alleging that New Zealand had violated his right to life under the International Covenant on Civil and Political Rights (Article 6). The Committee found the claim admissible, as removal to Kiribati presented an imminent risk of arbitrary deprivation of life due to the effects of sea level rise. Although the Committee recognised that harms from climate change can threaten the ability of present and future generations to enjoy the right to life, the committee dismissed the action on the merits, upholding New Zealand’s determination that Teitiota had not provided evidence sufficient to show he would face personal harm, as opposed to harms rooted in general conditions of the state.  Although Teitiota’s claims were not successful, the New Zealand courts did not rule out the possibility that environmental degradation caused by climate change or other natural disasters may provide a basis for protection under the Refugee Convention or protected person jurisdiction.

Whilst South Africa has not experienced any litigation challenging a national climate policy/law, such a case can based on the following grounds:

Under South African constitution, Locus Standi has been relaxed so that individuals and associations acting in their own interest, on behalf of another person, in the interest of their members and in the public interest can approach court to enforce the Bill of Rights (Section 38 Constitution).

The lack of litigation could be because of absence of climate legislation, which makes it difficult to base climate change claims on specific statutory provisions. The existing climate policy documents (National Climate Change Response Green Paper of 2010, the National Climate Change Response White Paper of 2011) are not binding and therefore not enforceable against the government.

Colombia has experienced climate change litigation challenging a national climate law/policy in the following instances:

  • Amazon case: plaintiffs were successful in demonstrating an omission and breach of duty by public authorities in protecting the Colombian Amazon, since the measures taken were not ambitious enough to tackle deforestation, which largely impacts climate change. As the Constitutional court recognised the Colombian Amazon as an entity subject to rights, the Plaintiffs exercised the tutela action, a mechanism used to protect fundamental rights to life, health and a healthy environment from violations by public authority.
  • Páramo case: the Constitutional court recognised for the first time the important of a páramo or moor ecosystem against mining activities, for their ecological importance and difficulty in recovering from extractive activities. The constitutional decision was based on legal and scientific arguments in protecting a healthy environment and water resources, and the important role páramos play in mitigating the effects of climate change.
  • Risk Management Policy case: the court recognised that fundamental rights to life and decent housing can be disrupted, as an immediate and direct consequence of the disturbance of collective rights. These fundamental rights were affected by environmental changes and a lack of local authorities’ response and proper risk management as obligated by the National Disaster Risk Management Law 1523 of 2012. Violation of this national law provided the grounds to base a claim challenging the state.

Remedies may entail court orders to public authorities to formulate and execute more ambitious action plans (Amazon case), and court orders to increase protective mechanisms to prevent damage to ecologically important areas, to prevent climate change acceleration (Páramo case).

Additionally, climate change litigation in Colombia can be brought by individuals challenging a national climate law/policy, on the following grounds:

  • National Law: an individual can issue claims against their government for allegedly not complying with its international climate change obligations by claiming the application of a law or an administrative act (Article 87 of the Constitution) through the action of compliance included by Law 393 of 1997. Therefore, any act or omission of the government could be challenged if there is sufficient evidence to demonstrate the violation of climate change obligations. Plaintiffs would have to provide sufficient evidence to demonstrate the violation of climate change obligations for the court to hear the case.
  • Human Rights: an individual could ground a claim based on a violation of the right to life, health and a healthy environment (Art. 79 of the Constitution) caused by ineffective climate policies/laws.
  • Popular Action: can be used for the protection of collective rights and interests (Art. 88 of the Constitution).
  • Tutela Action: can be used as a mechanism for the immediate protection of fundamental constitutional rights (Art. 86 of the Constitution), when in threat of being violated by ineffective climate action (Amazon case).

An interesting case to note regarding environmental law is the Atrato River case, which along with the Amazon Case, witnessed the Supreme Court recognise the Atrato River as an entity subject to rights and related to protection. Since the governmental, national, and local entities omitted to provide public responses to the needs of the territory and its habitants, the fundamental rights of the communities from the river basin were violated.

To remediate, the court recognised the biocultural rights of communities to manage and exercise autonomously the protection over their own territories and the natural resources that are part of their habitat.