ClientEarth’s Post

This is a great memo to read, commenting the key takeaways from ITLOS's opinion. This decision on climate change and ocean protection represents a pivotal moment in international environmental law. By declaring anthropogenic greenhouse gas emissions as marine pollution under UNCLOS, the decision sets a new standard for state responsibilities amidst the climate crisis. This reaffirms states' duty to prevent, reduce, and control emissions affecting marine environments, extending beyond Paris Agreement commitments. The opinion not only establishes a framework for future international climate rulings but also emphasizes equity in climate action, highlighting the leadership of SIDS. ITLOS's decision provides a robust foundation for global efforts to combat climate change and protect our oceans, urging decisive and collaborative action worldwide. Moreover, this decision will influence the upcoming decisions of the Inter-American Court of Human Rights (IACtHR) and the International Court of Justice (ICJ).

All lawyers are advocates for our clients. Some lawyers advocate through litigation to right a wrong by force of court decision. Others advocate transactionally, mediating the tensions between competing interests to construct compromise through collaboration. When earth is our client, we need both litigation and transaction expertise. One assignment Earth as our Client needs transactional lawyers for is this: work out an agreement between Earth and the superfiduciary stewards of society’s shared savings aggregated into social superfunds for provisioning the social goods of Workplace Pensions and Civil Society Endowments as forever machines, to form a Bank of Nature for giving humanity a new way of shaping through finance the right enterprises for shaping the right technologies for sharing the right choices for shaping the right economy for keeping a good society ongoing into a dignified future through a new Human-Nature partnership that is interactive, and not extractive. The first task of the Earth-Fiduciaries collaboration called Bank of Nature will be to reshape through finance our global energy supply ecosystem, for energy sufficiency that comes complete with both habitat longevity and social equity.

Can a collaborative approach drive #environmentalchange in Asia? ClientEarth, an environmental law charity known for #litigation in Europe, has adopted a collaborative and supportive approach in Asia, with a focus on capacity building. Dimitri de Boer, ClientEarth’s regional director for Asia, emphasises the importance of understanding the legal systems in different jurisdictions. Click the link below to read our interview with de Boer, where we discuss the role that ClientEarth hopes to play in #Asia. #Energy #Climate #Peace #Partnerships https://lnkd.in/dC86zrjS

What is ClientEarth's strategy in Asia?

The preliminary relief judge of the District Court of The Hague recently rejected Greenpeace's request to compel the Dutch State to develop and implement a nitrogen deposition reduction plan. The judgment highlights the complex balance that must be struck in environmental litigation, but also paves the way for preliminary relief proceedings in other climate enforcement litigation. 🔽 Read our recent blog post from Gerard J. Meijer, Bas van Niekerk and Thomas de Boer to find out what we can learn from this judgment.  #EnvironmentalLaw #ClimateLitigation

It was reported this week that 84,000 environmental public interest cases against administrative actors were filed in China in 2023 alone (!). That’s a huge number, so I was curious about China’s environmental litigation system. Here’s what you need to know:   🔻 China’s Climate Litigation Strategy: The Supreme People’s Court of China issued guidance last year on the country’s climate governance law. This guidance equips judges with the necessary knowledge and tools to handle complex climate-related disputes. This includes cases relating to the green transition, heavy industries, low-carbon energy systems, and the carbon market. In its regulations, China recognises liability for environmental damages as well as environmental tort liability. Especially liability for environmental damages, which is established through Environmental Public Interest Litigation is interesting to discuss in more detail. 🔻 Environmental Public Interest Litigation (EPIL): ▶ EPIL allows NGOs and prosecutors (China’s ‘procuratorate’) to file lawsuits on behalf of the public interest to protect the environment and address ecological damage. ▶ NGOs have to meet strict requirements to be able to bring EPIL cases. However, state-backed NGOs like the China Biodiversity Conservation and Green Development Foundation are playing a leading role in bringing polluters to justice (they took on major polluters, including a state-owned oil company, and won). ▶ Most EPIL cases are brought by the procuratorate, which is a centrally-governed body akin to prosecutors. They benefit from more financial resources, better access to evidence, and more structure. However, they have been said to suffer from a lack of institutional independence. China’s EPIL efforts are deserving of global coverage. The scale of China’s environmental challenges demands innovative and effective legal mechanisms. The centrally governed procuratorate, although it has its flaws, fits well within China’s governance structure, and allows China to prevent local authorities from choosing self-preservation over environmental protection. Within China’s governance system, its EPIL framework is developing into a multifaceted approach, which combines stricter enforcement, public participation, and strategic litigation. #China #EnvironmentalLaw #ClimateLitigation #ClimateChange

On 6 December the IUCN World Commission on Environmental Law held a side event in collaboration with the International Bar Association American Bar Association OAB - Ordem dos Advogados do Brasil the Law Society of England and Wales and the Net Zero Lawyers Alliance on the role of the #law, and #lawyers, in addressing the climate crisis. A few highlights of a very interesting panel: - From the increasing number of climate framework legislation and climate litigation cases worldwide, to the key legal issues arising at COPs - eg this year the issues related to #lossanddamage , and the implementation issues of the #parisagreement , we have come a long way in understanding and mainstreaming the legal aspects of climate change. - At national level, the engagement of lawyers across the board is also increasing, in good part due to the support and guidance provided by bar associations. There is still a lot to do, including engaging bars in other jurisdictions following the recent good practices including in England, USA and Brazil. Recent developments include not only guidance, but also the emergence of standards of fiduciary duty of lawyers in their advice to clients. - There is much more to be done including on providing capacity building, providing spaces for collaboration and exchange between lawyers, legal researchers, members of judiciary and legislators, to exchange perspectives and experiences in dealing with legal aspects of climate change. The IUCN WCEL CLimate Change Law Specialist Group aims to provide a space for such interactions. - Momentum is building for a thematic legal day at COP - stay tuned! Christina Voigt Francesco Sindico Lara Douvartzidis Georgina Beasley Nadia Ahmad Achinthi Vithanage Letícia Perrone Campos Mello

2024 is shaping up to be the year of international climate litigation. And the ‘rights turn’ Dean Hari Osofsky and I predicted in 2018 seems to be coming to fruition, with 3 of the 4 cases on foot before regional and international tribunals centrally featuring human rights arguments. See https://lnkd.in/gRuZhnDA for our 2018 analysis in Transnational Environmental Environmental Law.

Since its beginning in 1969, ELI has stood for good environmental governance. While times and challenges have evolved, this foundational value has never changed – it is the root of everything we do here at ELI. For more on ELI’s history and our longstanding commitment to nonpartisanship, read our latest blog: https://lnkd.in/ecfqH-VD

The AFR has an article on environmental litigation — “This isn’t going away,” says Brad Jessup, a senior lecture in environmental law at the University of Melbourne. At stake is a flourishing class of litigation that depends on reliable evidence of traditional beliefs and songlines about ancestral creation beings, drawn from Indigenous witnesses by anthropologists and other experts so that courts can make a considered judgment about their significance, level of acceptance, and the risks posed by resources projects, developments and the effects of climate change. “Environment groups learned from what it was the judge was saying they needed to demonstrate, and they gradually got their processes in order to get the evidence that was required to establish the level of proof demanded by judges,” Jessup says. “I expect the same thing will happen here.” He says he has sympathy for companies grappling with something they don’t understand over wide gulfs in language and cultural understanding. Santos appeared from the judgment to have done “a lot of mapping work to find things”, but not in “trying to understand significance of place” to the Tiwi Islanders. Developers may need to engage a different type of expert, he says, but they need to take the lead much as mining companies have done on land. For plaintiffs and their lawyers too, the process will take time, because gathering evidence of indigenous cultural heritage is difficult and can’t typically be done to a litigation timetable. “I do think it needs to be a bit more cautiously ... and that would likely mean that another case is not likely in the immediate future. It might be a few more years away as that information is gathered,” Jessup says. Marshall McKenna, a partner with Gilbert & Tobin based in Perth who’s acted for corporations, governments and Aboriginal claimants, says future claims for risk to cultural heritage sites will need to show harm is probable and not just possible, which raises the bar, but injunctions will still be granted on the balance of convenience – a lower threshold. “I think a lot of the sting has gone out of these kinds of challenges for fossil fuel. But I wouldn’t rule out a continuation of the campaign,” he says.