Mexico leads the list of countries in Latin America and the Caribbean with the highest number of climate disputes, a new legal figure in which the right to litigate for a safe climate is sought. On a global scale there are 1,550 cases, some with successful precedents.
Climate litigation refers to court cases that aim to hold governments, companies and other public or private institutions accountable for their legal obligations in relation to the climate crisis, to promote actions to mitigate climate change or to adapt to its inevitable effects, according to the Inter-American Association for the Defense of the Environment (AIDA).
The senior lawyer of the AIDA Climate Change Program, Javier Dávalos, explained that they are about to launch a platform on which climate disputes in the region are brought together and in which they count 50, of which Mexico leads the list with ten.
The lawyer of the movement that groups together different associations and non-governmental organizations (NGOs), Jóvenes por Nuestro Futuro, Nora Velasco, explained that a report from the UN and UNEP showed that this type of litigation has doubled in the last three years and they expect them to increase in Mexico due to the policies of the current federal government.
“It means that doubled since this report was last made, which was in 2017 when there were 884 litigation. Those lawsuits were concentrated in 24 countries and by 2020 there were 38 countries. More and more these cases are beginning with greater recurrence throughout the world ”, he highlighted.
Velasco, who is promoting one of these lawsuits in Mexico through Jóvenes por Nuestro Futuro, commented that they are claiming that with the electricity reform, unlike other actions taken by companies, Mexico is not doing what is necessary to achieve the goals to mitigate CO2 that are established in the Paris Agreement.
“Where we had committed to making further progress was in the energy transition in the electricity sector, and it is precisely where we are not achieving it, which is why this climate litigation is very important. We are taking actions regarding the most important mitigation policy that Mexico had, ”said the lawyer.
He said that to differentiate a climate dispute, you have to have a claim related to the environment, “It is not a claim of pollution, it is not a claim of damage to health, it is an issue that we cannot emit greenhouse gases because that warms the planet, that is the claim that is in the center.”
Velasco sees that the number of disputes of this type will be increasing, to the extent that there is no climate policy, and it is the only way to enforce those goals that Mexico established in international treaties, in the Mexican constitution itself and the General Law on Climate Change. “The courts are going to tell the government that they have to comply with these policies.”
Regarding this growth on a global scale in litigation, attorney Javier Dávalos commented that the perspective in Mexico will be similar to the global because civil society organizations are finding in this tool a way to accelerate the processes of increasing the climate vision of the countries.
“The good results obtained in jurisdictions in Europe inspire us to use this tool in Latin America and in other parts of the world, to demand compliance with obligations. The trend will be one of growth in the number of cases ”, explained Dávalos.
Said this momentum can be given in Mexico due to the setback in energy policy, where a transition towards renewable energies is being put in second place, which is being proposed by the world community through the Paris Agreement and COP 26.4.
Greenpeace’s consulting lawyer, Luis Miguel Cano, participates in five climate litigation that is being promoted in the country in order to ensure the maximum protection of people in environmental matters and consolidate the mandatory nature of Mexico’s climate commitments.
Cano affirmed that in the last three years he had to be in trials in which energy policy and the current government’s commitment are questioned, to try to sustain national development in the exploitation of fossil fuels, which is not in accordance with the objectives of addressing the climate crisis.
“Pemex is one of the main companies in the world that contributes to global warming. We are part of the Paris Agreement and the fourth article of said agreement clearly says that there must be a progression in terms of climate change control goals ”.
Success precedents
Some of the climate litigation is successful and they set a precedent for more cases in other countries. One of them was in the Netherlands, where the government was sued for more ambitious laws to mitigate greenhouse gases.
Nora Velasco assured that the Climate disputes are forcing governments above all and some corporate authors to pursue more ambitious climate change mitigation and adaptation goals. He stressed that one of the important cases, although pending resolution, is that of Juliana against the United States, where a group of teenagers brought the Donald Trump administration to trial for global warming.
For his part, Javier Dávalos said that in Germany there is a sentence to the constitutional court for the change of the government’s public policy in a very short period of time. “There are several precedents, in 2018 the Colombian constitutional court declared the Amazon as a subject of rights, and established a series of measures that the government should adopt to preserve its integrity as an ecosystem against climate change.
Execution of sentences, one of the challenges
Javier Dávalos said that one of the challenges is the institutional framework, which is not so strong in the countries of the region, so there are particular problems in the implementation of the sentences. “This will be the biggest difference we will find with respect to what happens in countries like Germany.”
Added that Another challenge is the risk faced by environmental defenders in Latin America, since more people are killed or their physical integrity affected by carrying out processes to defend their territories and their rights.
For his part, Luis Miguel Cano shared that there is a compliance problem in the judgments and execution. “There is a challenge in the clarity of the actions and the times to comply and at least in my experience of very bad faith from the authorities wanting to delay the issue.”
AIDA’s lawyer explained that the litigation has national jurisdiction, soe there is no mechanism of the international community to exercise some kind of coercion o pressure to comply with sentences; This as a sign of respect for the division of powers of each of the countries and the principle of non-intervention of the sovereignty of each State, from the perspective of international law.
Commercial pressures
However, Dávalos stated that there are other types of international pressure mechanisms; Countries like France in relation to Brazil requested, from a commercial perspective, certain requirements regarding certification of no deforestation in meat production, for example.
“Another example can be the agreements that Mexico reached in North America where climate and emissions issues are also important, and some kind of pressure was made for certain decisions to be reviewed by the Mexican government ”.
This type of commercial pressure can help the country move towards ensuring compliance with the goals that it signed in international agreements on climate change.
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