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The two main legal avenues used by the international community to hold the fossil fuel industry accountable for the adverse climate impacts associated with its polluting activities are corporate climate change litigation and regulatory action through the adoption of mandatory due diligence legislation both at national, as well as EU level with a proposal for a Directive on Corporate Sustainability Due Diligence. The present thesis critically examines the weaknesses of both tools in shaping climate due diligence in a manner which can sufficiently strengthen corporate accountability in the climate change context, and invites a revised approach which reflects the gravity of climate change considerations in due diligence processes.

Resumo O artigo discute como o licenciamento ambiental pode contribuir com a efetividade da política climática brasileira ao permitir que os custos sociais da poluição climática passem a ser identificados, mitigados e compensados, sem prejuízo da análise de viabilidade ambiental, locacional e tecnológica. A partir da análise da legislação em vigor, conclui-se que, embora a inserção da variável climática nos processos de licenciamento ambiental seja exigível, ela ainda é incipiente nos órgãos ambientais. Com base em estudos técnicos, o artigo aponta para a necessidade de avaliação de impactos climáticos nos processos de licenciamento ambiental, delineia os conteúdos mínimos dessa avaliação e apresenta algumas estratégias jurídicas para que tal avaliação passe a ser devidamente realizada. Abstract The article discusses how environmental licensing can contribute to Brazilian climate politics’ effectivity by allowing the climate pollution’s social costs to be identified, mitigated and compensated, without prejudice of the environmental viability, locational and technologic analysis. Starting from the current legislation, the conclusion is that despite the insertion of the climate variable on the environmental licensing processes being exigible, it’s still incipient on environmental organs. Based on technical studies, the article points to the necessity of evaluation of climate impacts on the environmental licensing processes, outlines the minimal contents of this evaluation and presents some legal strategies for that evaluation to be properly done.

Evolution of climate litigation in European context, abstract This diploma thesis deals with the evolution of climate litigation in the European context. The aim of this paper is to describe and map the institute of climate litigation as a whole, to describe its types based on different standpoints and aspects and to describe the historical development of climate litigation in the world and in Europe. This paper further describes five leading cases of European climate litigation in detail. The cases of Urgenda Foundation v. The Netherlands, Neubauer v. Germany, Notre Affaire à Tous v. France, VZZ Klimaatzaak v. the Kingdom of Belgium, and the case of Milieudefensie v. Royal Dutch Shell PLC were thoughtfully chosen based on their connection and the impact they had on climate action in their respective countries. To finish, this thesis aims to find answers to several legal questions concerning climate litigation by comparing those described climate cases. The main methods used in this diploma thesis were the research of legal literature, case law of foreign courts and legal regulations. The conclusions of this paper were gained by analysis of information and subsequent use of different methods of interpretation. This diploma thesis is divided into an introduction and a conclusion and three main chapters, some...

Often we think “due process” as a procedural requirement that a government must comply with before it imposes restraints or sanctions on an individual. In USA jurisprudence, in particular, due process also takes a substantive form. A limitation on liberty by government must also comply with a substantive dimension: there must be compelling reasons for government (or legislator) to limit individual liberty, otherwise it violates the substantive due process rights. Substantive due process rights have been applied in US climate litigation, Juliana v. US, where the plaintiffs claimed that the continued governmental permission, encouragement etc. to exploit or produce fossil fuels, in spite of the knowledge of the danger that CO2 emission would cause to the climate, violated their substantive due process rights. The District Court ruled that an individual has a right to be free from climate change on a catastrophic level. The right to a sustainable climate derived from ‘liberty’. Sustainable climate was the foundation of society “without which there would be neither civilization nor progress”. The principle seems also to exist in European law concerning protection of the climate. In Neubayer et al v Germany, the Federal Constitutional Court of Germany provided a similar reasoning although without direct reference to substantive due process. This paper addresses the principle of substantive due process in a European context. The paper discusses the potential for such a principle with basis in constitutional law and its limits under the European Convention on Human Rights (ECHR). The paper discusses substantive due process in the context of established principles of prevention and environmental impact assessment of public international law as well as the due diligence requirement of the principles of international law and of the Paris Agreement.

On 24 February 2021, the Italian Corte Suprema di Cassazione delivered a landmark ordinance unequivocally establishing that the existence of a situation of environmental degradation in the country of origin of an international protection seeker, which entails grave human rights violations, justifies the recognition of the humanitarian protection status. In ruling that the assessment of vulnerability, for the purpose of granting humanitarian protection, must also be conducted in relation to environmental and climatic conditions which are capable of seriously affecting the enjoyment of human rights, the Supreme Court potentially paves the way for a first wave of rights-based climate lawsuits before Italian civil courts.

Nonostante la diffusione di disposizioni di contenuto ambientale nelle costituzioni sia un fenomeno ormai consolidato a livello globale, resta da verificare se l’adozione di tali clausole abbia effettivamente comportato un rafforzamento delle argomentazioni ambientali nel bilanciamento con altri valori costituzionali. Al fine di valutare l’efficacia di tali disposizioni, nel presente contributo si analizzerà come il parametro costituzionale sia stato adoperato dalle parti o dai giudici nei contenziosi climatici proposti fino a questo momento. Verranno quindi proposte alcune classificazioni diacroniche e sincroniche dei casi esaminati, a seconda della tipologia di giudizi in cui le disposizioni costituzionali sono state invocate e del contenuto delle clausole ambientali adoperate nei suddetti contenziosi., BioLaw Journal - Rivista di BioDiritto, N. 2 (2022)

European Papers - A Journal on Law and Integration, 2022 7(1), 253-264, European Forum Insight of 18 May 2022, I. Introduction. - II. Un insuccès imputable à l'obstacle de la recevabilité des requêtes climatiques auprès de la Cour de justice. - III. Explorer les voies de droit à même de porter la défense du climat devant la Cour de justice. - IV. Mobiliser en Europe des droits fondamentaux substantiels adaptés au contentieux climatique., So far, climate change litigation in the European Union has been a disappointment, since the European Court of Justice denied the admissibility of two promising cases in 2021: Sabo ECLI:EU:C:2021:24 and Carvalho ECLI:EU:T:2019:252. Nonetheless, the European human rights litigation can still play a significant role in alleviating the ongoing climate crisis in the future. There is still a path to find the access to the Luxembourg Court for future claims related to climate change. Renewed standards of European Human Rights could also be one of the keys to create a proper case law to fight global warming.

Since 2016, a group of senior women organized in the association KlimaSeniorinnen Schweiz have been trying to legally force the Swiss government to take stronger climate protection measures. Parallel to the pursuit of a climate lawsuit, the KlimaSeniorinnen have developed into a growing social movement that is present in the media and participates in the public debate on climate change. Building on this specific climate litigation case, the present article analyzes the strategy formation of new actors in the field of climate governance. Based on existing concepts of social movement research, the strategy formation of the KlimaSeniorinnen is reconstructed in terms of a strategic actor who pursues certain strategic orientations in given strategic contexts. The empirical analysis of the strategic context (by means of opportunity structures), the strategic orientations (via collective action frames), and the strategic actor (by means of interviews) shows a double strategy. On the one hand, the KlimaSeniorinnen attempt to address a specific legal opportunity structure with an ‘injustice frame,’ which emphasizes human rights and the special vulnerability of older women to intense heat waves. On the other hand, they want to mobilize public support for an ambitious climate policy by additionally promoting a ‘grandchildren frame,’ which articulates altruistic values, such as responsibility towards future generations. Based on this analysis, both practical implications and consequences for future research on a new climate politics, which is increasingly taking shape between and across different arenas, are discussed.

The ground breaking Urgenda case showed that in the Netherlands there is ample room for climate litigation by individuals against the Dutch state. This contribution discusses in detail how much room the Court created and discusses other future litigation pathways, such as cases against major contributors to climate change. It also discusses the impact the adoption of the 2015 Paris Agreement and the 2019 Dutch Climate Act will have on the position of the individual who wants to challenge Dutch climate policies.

The article comprehensively analyses the case of Urgenda v. the Netherlands as the first successful climate litigation in Europe. The article analyses the arguments on which the Dutch courts established state responsibility for human rights violations caused by the failure of the state in the implementation of policies to combat climate change. The significance of this case is pointed out not only for Dutch, but also for international law. The second part of the article will show how the Urgenda case affected climate litigation that began to appear before national courts across Europe. Through a comparative analysis of cases, it will be pointed out that there is uneven case law in climate litigation before national courts. It will be seen how the Urgenda case had an impact on the initiation of climate disputes and before the European Court of Human Rights. Particular attention is paid to the issue of the connection between the impact of climate change and the torture caused by the harmful effects of global warming, which was initiated before the European Court of Human Rights in Strasbourg. At the end of the article, the perspective of climate litigation is considered.

Against the background of the international climate protection aimderiving from the “Paris Agreement” of December 2015, demanding alimitation of global warming to 1,5 Celsius at best, the public discussionand anger on the mid- and longterm consequences of a constantlygrowing greenhouse effect have clearly risen. Along with that, “climatelitigation” has turned into serious means to sue governments forinadequate measures to reach international and domestic climateprotection goals. In a line of several legal actions and high courtdecisions in different countries during the last years is the courtorder of the Federal German Constitutional Court from March 2021.The judges considered the German Federal Climate Protection Actunconstitutional due to a lack of clearing a reliable legal path to reachthe CO2-reduction goals and this decision was seen as a milestone inclimate litigation. Combined with the obligation of the state to protectthe natural resources by legislation, the court invented the “advanceinterference-like effect”on future generations and the “intertemporalguarantees of freedom”, two legal figures which could be possiblyapplied to constitutional law abroad and thus fertilize argumentation inclimate litigation outside of Germany, too. No contexto do objetivo internacional de prote o do clima decorrentedo Acordo de Paris, de dezembro de 2015, que exige uma limitação doaquecimento global a, no máximo, 1,5o. Celsius, a discussão pública e araiva relativas às consequências em médio e longo prazo de uma estufaem constante crescimento efeito aumentaram claramente. Além disso,o “litígio climático” transformou-se em um meio consistente deprocessar os governos por medidas inadequadas para atingir as metasinternacionais e domésticas de proteção climática. Na linha de váriasações legais e decisões de tribunais superiores em diferentes paísesdurante os últimos anos, está a ordem judicial do Tribunal ConstitucionalFederal alemão de março de 2021. Os juízes consideraram a Lei Federalde Proteção Climática da Alemanha inconstitucional por não abrirum caminho confiável para se atingirem as metas de redução de CO2.Essa decisão é vista como um marco no litígio climático. Ela soma-se obrigação do Estado de proteger os recursos naturais pela legislaçãoque o tribunal criou com “efeito de interferência antecipada” sobre asgerações futuras e às “garantias intertemporais de liberdade” — duasfiguras jurídicas que poderiam ser aplicadas ao direito constitucionalno exterior e, assim, poderiam fertilizar a argumentação sobre litígiosclimáticos fora da Alemanha também.

This article revisits and expands on extant scholarly inquiries into the so-called ‘rights turn’ in climate litigation, with the objective of providing a more comprehensive appreciation of the role of human rights litigation in the context of the climate emergency. We rely on well-established categories used in the literature on climate litigation and on human rights and the environment to provide the first systematic analysis of rights-based litigation that aligns with climate objectives. Building on this basis, we consider the significant data and knowledge gaps concerning human rights litigation that does not align with climate objectives. We flag the need to better understand the role of rights-based litigation in the context of the complex societal changes associated with a just transition towards net zero emissions. The article contributes to scholarly inquiry into this new and increasingly prominent area at the intersection of human rights and environmental law, highlighting knowledge gaps that deserve further investigation, both from an academic and from a policy and practice perspective. * Email: Annalisa.savaresi@uef.fi. ** Email: J.Setzer@lse.ac.uk. The authors are grateful to Gwenyth Wren for invaluable research assistance in the preparation of this piece. They are also grateful to Catherine Higham, Josh Gellers, Pau de Vilchez Moragues, Dennis van Berkel, Lisa Vanhala and two anonymous reviewers for comments on earlier drafts. Joana Setzer acknowledges support from the Grantham Research Institute on Climate Change and the Environment, at the London School of Economics, and the ESRC Centre for Climate Change Economics and Policy (CCCEP) (ref. ES/R009708/1). The usual disclaimers apply.

European Papers - A Journal on Law and Integration, 2021 6(3), 1307-1324, European Forum Insight of 1 February 2022, I. Climate litigation: a tool to overcome majoritarian paralysis? - I.1. One shared conclusion: politics is failing. - I.2. Different ways leading to a similar conclusion: human rights, tort, policy objectives, national legal obligations, and always international agreements and science. - II. Separation of powers at stake: what role for counter-majoritarian forces? - II.1. Different contexts lead to different separation of powers concerns. - II.2 We cannot exclude (failing) politics despite overwhelming climate science. - III. A research agenda., The climate crisis is - as far as we can see in 2021 - the greatest challenge of the 21st century. The existence of global warming as a human-made problem and the abstract need of transiting away from fossil energy sources is largely accepted. The question, however, of how to best achieve this transition is a major bone of contention - internationally, within the European Union (EU), and in many EU Member States. However, the issue will only become more pressing and political struggle will only become more forceful as the negative impacts of climate change increasingly affect our lives and livelihoods. Until now, national legislatures and executives have failed to take measures anywhere close to what would be needed to reduce emissions sufficiently to mitigate the climate crisis. The consistent failure of "politics" in different contexts - international, European, and national, or even regional and local - has motivated a growing share of citizens and civil society actors to pursue what is necessary via counter-majoritarian instruments, most prominently through climate litigation. In this Insight, I analyse these growing counter-majoritarian pressures in the context of climate change. My primary focus lies with broader questions of separation of powers, the role of the judiciary in constitutional democracies, and how legally enforceable reduction standards could and should be determined.

This article draws on the notion of co-production to assess the construction oftransnational narratives in climate change litigation. Using the examples ofrecent cases from the Netherlands, Norway, and Ireland, the article identifies acommon narrative regarding the temporal dimension of climate change and itsgovernance. Litigants are shown to develop a notion of urgency for nationalclimate policies with the help of symbols and discourses—including pathways,crossroads, milestones, thresholds and carbon budgets—in order to attributemeaning to complex models of the future climate, and the immediateresponsibilities of states to limit future global warming. In response, states offerdepictions of the future in which technological and economic evolutionsrender our current climate crisis less challenging and costly. This narrativeapproach helps make sense of the transnational legal strategies through whichour understanding of responsibility and climate justice is unfolding.

Climate litigation has become a trend in recent years. In one form such litigation organized citizens seek to require governments to set more ambitious CO2-abatement goals. In the Dutch Urgenda case, which is held to be a landmark case, the plaintiffs prevailed, forcing the Dutch government to change its climate policies. Using Urgenda as illustration, this article provides reasons for being skeptical of such climate litigation. One central reason for skepticism is the courts’ lack of democratic legitimacy, but this article focuses on another reason, namely that court litigation cannot be trusted as a mechanism for making good climate decisions. This functional reason for skepticism is well illustrated in the Urgenda case, where the courts framed the policy question in a manner that made it conducive to court adjudication, but where this framing was untenable. The Supreme Court referred to a scientific and political consensus about the need for more ambitious abatement and inferred that the Dutch State’s greater obligations then followed from human rights principles and the precautionary principle. However, this framing was invalid, as there is no clear scientific or political consensus about the required degree of abatement and as neither human rights nor precautionary principles provide a coherent framework for weighing costs and benefits of alternative climate policies. In the absence of this framing, the Court would have had to consider the theories that seek to weigh costs and benefits of more abatement, and such consideration of alternative theories cannot reliably be conducted through the mechanisms of legal adjudication. For one thing, courts are in civil trials restricted to considering the evidence that litigants bring forth. Notably, in Urgenda, the Dutch government could not be expected to dispute facts or theories to which it was politically committed. Moreover, the theories weighing costs and benefits are inherently complex, and judges cannot be expected to be able to choose between them. For instance, choosing between different theoretical prescriptions requires an understanding of the very intricate question of the proper rate of discounting over time.

Judicial Protection of a Right to the Protection of Health and Favourable Environment with focus on the Region of Ostrava Abstract This diploma thesis deals with legal means of legal protection of the right to the protection of health and favourable environment with focus on the Ostrava region. The aim of this work is to map out judicial means of protection and analyze whether these means are in accordance with their purpose of ensuring the protection of persons against interference with their rights and the public interest in protection of health and the environment. The main methods used in this diploma thesis were the research of legal literature, case law of Czech and foreign courts and legal regulations. Subsequent use of synthesis and the analysis of the acquired information and the use of linguistic, systematic, logical and theological interpretative methods led to the generalization of the main and partial conclusions. This diploma thesis is divided into an introduction and a conclusion and six main chapters, some of which are further divided into subchapters and individual points. The first chapter deals with on the constitutional basis of health protection and a favourable environment. The second chapter focuses on the current condition of the environment in the Ostrava region, its causes and...

Young people are increasingly taking governments to court for their failure to meaningfully abate climate change. They argue that states have a responsibility under domestic and international law to protect, respect and fulfil the rights of children against worsening climate change. Such cases form a unique subset of rights-based climate change litigation due to their emphasis on intergenerational equity. Young people are disproportionately affected by the climate crisis and face distinct age-related vulnerabilities and adverse discrimination linked to the impacts of climate change. The unequal burden that young people bear in this context is also shaped by the social, legal, political and economic structures that marginalize their interests and voices in societies around the world. To reclaim their agency in the face of the crisis, young people are increasingly mobilizing against policies and actions that perpetuate the status quo. They do so through participation in activist efforts, and as we discuss in this paper, litigation cases. As of May 2021, the Sabin Centre for Climate Change Law’s database of climate litigation included 32 youth-focused cases in 14 countries. Our article takes stock of this wave of climate litigation and offers both a typology for and analysis of the types of claims in this jurisprudence. We identify three types of youth-focused cases, including those focused on: (1) insufficient efforts to reduce carbon emissions and meet climate commitments; (2) insufficient efforts to implement mitigation and adaptation measures; and (3) specific regulatory approvals that are expected to have dramatic climate impacts. We also identify a worrisome trend in which youth-focused cases are dismissed due to a lack of justiciability or standing at a procedural stage. We suggest that courts’ refusal to deal with the merits of these claims undermines not just the agency of young people, but also constitutes a denial of their rights to redress for human rights infringements resulting from worsening climate change.

Climate change is a complex and transboundary problem poised to become increasingly worse unless concrete action is taken by all parties concerned to stem the catastrophe and dial back the levers to climate collapse. The brunt of climate change is being felt across the world but particularly in Global South countries with limited capacity to mitigate the damage caused by these changes. To respond to this challenge, governments acting in concert under the auspices of the UN as well as domestically are putting in place laws aimed at stemming the tide. However, legislation has come up short owing to a number of factors including economic and social considerations, corporate interference in the political process of rule-making, and the lacunae in the climate laws of various countries. These shortcomings underscore the place of climate litigation as a complementary tool for climate regulation as well as remediation. But even litigation, especially transnational climate litigation, has its own shortcomings represented in questions of extraterritoriality and sovereignty, issues of fora, conflict of laws, causation, standing, and enforcement of foreign judgments. For the Global South particularly, the extra challenges of weak institutions, incapacity of personnel, and partiality (whether perceived or actual) further serve to constrain effective transnational climate litigation, limiting access to justice generally and marginalizing Global South voices in the emergent legal regime on climate change being written through case laws. I propose that hybrid courts will be able to address the twin issues of extraterritoriality of cause of action, and the need to mainstream Global South voices in the emergent legal regime on climate change. I argue this possibility by contemplating the architecture of hybrid courts which integrates national and international law structures including personnel and laws, as well as the funding necessary to procure much-needed capacity to infuse legitimacy into the process and respond to the extraterritoriality questions.