Is Latin America leading a ‘quiet revolution’ in climate litigation?

In 2019, a group of children took the Peruvian government to court, seeking to force it to develop a national plan to curb deforestation.

The boys and girls, all of whom were under eight and were represented by their parents, argued that the state’s failure to do this violated their right to enjoy a healthy environment, as well as their fundamental rights to life, water and health. They said deforestation in the Peruvian Amazon generates a loss of ecosystem services and contributes to the generation of greenhouse gas emissions that cause climate change.

Their case is still pending, but comes amid a groundswell in climate litigation across the world, with cases promoting climate action increasingly winning. And while most of these lawsuits are still in the US, Australia and Europe, there is a steadily growing movement in Latin America too – one that has its own distinct character.

This February, the Platform for Climate Litigation in Latin America and the Caribbean (Litigio Climático), was launched by the Interamerican Association for Environmental Defense (AIDA) together with organisations and lawyers behind some of the cases in the region. It shows that 49 legal cases have been launched so far, mostly in the past five years. Some of these are primarily about climate change, while others deal with associated environmental issues, including mining, fracking and contamination, among others.

The database is maintained in partnership with the Sabin Center for Climate Change Law at Columbia Law School. The law school’s global climate litigation fellow Maria Antonia Tigre, who is also deputy director of the Global Network for Human Rights and the Environment (GNHRE), says climate litigation in general has arisen from frustration at the lack of ambition shown by international and national policymakers.

Tigre notes that while climate lawsuits in the Global North have tended to focus on the extraction and combustion of fossil fuels, many Latin American cases are centred around the removal of the carbon sinks of the region’s forests. The case in Peru is one pertinent example.

And, unlike their Western counterparts, they often frame climate change as a violation of fundamental rights. Guyana’s government is being taken to court by two citizens who say its approval of licences for offshore oil exploration violates their right, and the right of future generations, to a healthy environment.

Litigation takes off in Latin America

Tigre is also the lead author of a forthcoming paper in the Journal of Human Rights and the Environment that looks at whether the region is “quietly leading” a revolution in climate litigation.

Its analysis shows the crucial role of “environmental constitutionalism” – the invoking of constitutional law to protect the environment – in Latin America. Recent and emerging cases are said to be “often grounded on the right to a healthy environment as the primary legal basis” for questioning a lack of climate policies. Other cases recognise international agreements as binding in law.

Some of the legal theories being put forward are really innovative

“Climate litigation [in Latin America] is still in the early stages, and it takes a long time for cases to get to a decision point, but some of the legal theories that are being put forward are really innovative,” Tigre tells Diálogo Chino.

The next big legal decisions in the region are expected to come from Brazil, where the Supreme Federal Court will judge two lawsuits questioning policies linked to Amazon deforestation.

It is unclear which way the court will rule, but Minister Cármen Lúcia, the cases’ rapporteur, has already cited an advisory opinion by the Inter-American Court of Human Rights that recognised the right to a healthy environment, and the same court’s judgement in the Lhaka Honhat case, which condemned Argentina for violating the rights of Indigenous peoples.

Tigre is hopeful that the Escazú Agreement, which entered into force last year, will also help support climate litigation by increasing access to justice, bringing opportunities for access to information and improving public participation in decision-making.

She notes that Escazú has been mentioned in the Brazilian supreme court hearings – even though Brazil itself has not yet ratified the agreement: “These things take a little time but I think it will make a difference.”

Obstacles remain

Despite the steady recent progress, experts stress that litigating in Latin America has its own particular challenges.

In a recent article she co-authored, Tigre says corruption remains “widespread and deeply rooted”, especially in multi-million-dollar industries such as fossil fuels and extractives, with a risk that academics may be co-opted by companies or governments. Proving and battling this problem is “extremely difficult and dangerous,” they write.

There are also significant personal risks to bringing litigation in Latin America, a region Global Witness has shown to be the most dangerous for environmental and human rights defenders. Tigre adds that a lack of resources might also leave plaintiffs unprotected, not only from violence, but emotional stress or social stigma.

Although most concluded lawsuits have supported climate action, some cases fail. In Ecuador, a group of indigenous Amazonians lost their challenge against a local arm of one of China’s biggest oil firms.

And even if a lawsuit is won, there is no guarantee it will be implemented.

This is true of one of the most notable regional litigation success stories: a 2018 Supreme Court ruling that the Colombian government must protect its part of the Amazon from deforestation. According to Bogotá-based nonprofit Dejusticia, the ruling has not been properly enforced, with deforestation continuing apace, while in places where it is being tackled, the government is using it as an excuse to violently drive out campesinos and therefore committing human rights abuses.

It is not a magic formula where in a day to a week you have a result. It can take years. We need to be open about these kinds of challenges

Juan Auz, is a researcher in human rights and climate change law in Latin America at the Hertie School, a research institution in Berlin. He struck a note of caution at a launch event for the Litigio Climático platform, saying people should not have “blind faith” in litigation to solve every climate challenge.

“It’s not a magic formula where in a day to a week you have a result. It can take years. And many times you end up without resources. We need to be open with the communities we are litigating with about these kinds of challenges.”

James McKeigue, managing editor of LatAm Investor, says facing climate lawsuits does not appear to be high on the list of priorities for extractive companies in the region, which are more concerned about local environmental and community protests. But he notes that Latin America is “going to bear the brunt of local environmental damage caused by the energy transition”, as it is the source of many essential raw materials, including lithium for batteries.

Nonetheless, experts expect climate litigation to expand significantly in Latin America in the coming years. In a recent paper in the Journal of Human Rights and the Environment, Auz concludes that, “given the enormous importance of Latin American ecosystems to the protection of the rights of thousands of communities, lawsuits are likely to keep framing climate change as just one of many other human rights arguments.”

Speaking at the launch of the litigation database, Gladys Martínez, executive director of AIDA, said she hopes the regional platform will inspire new cases and help secure outcomes that further climate action: “Having a platform in Spanish where you can consult the main active cases of the region is a unique opportunity and a way to join efforts.”