This section concerns what can be called “Mitigation Claims”. They are called mitigation claims because they involve bringing governments to court to demand that they take better mitigation measures. They seek to force governments to take bolder action to reduce emissions or to support non-GHG emitting alternatives, such as renewable energy.
Mitigation claims are typically brought against governments of countries who have significantly contributed to climate change and are accused of failing to take sufficient action to reduce their GHG emissions (i.e. to take mitigation measures).
Consider the following checklist if you are thinking about taking a mitigation claim:
|1) Is a mitigation claim right for me?|
|2) Is there an appropriate law for me to base a mitigation claim on?|
|3) Do I have the right to bring a claim?|
|4) Have I identified the right defendant to take a mitigation claim against?|
|5) Have I gathered enough evidence to take a mitigation claim?|
|6) Have I identified and followed the procedural steps I need to take in my claim?|
|7) If I win, what remedies could I get?|
|8) If I lose, is there an appeals process or a regional/international court that I can bring a mitigation claim to?|
This section seeks to help you answer these questions. In addition, if you want a take a mitigation claim further, the A4J Mitigation Claims Template may help you form your legal arguments.
A question to ask yourself when considering bringing a case to court is whether bringing the case is the right decision for you. You should continue to ask yourself at each stage of your case’s preparation.
The following of advantages and disadvantages is designed to help you consider whether a mitigation claim is right for you.
|Mitigation claims can change overall government policy on climate change. This can have a ripple effect, leading to specific actions (e.g. cancelling high-emission projects and regulating corporations).||Mitigation claims may be more difficult in developing countries as the IPCC mitigation targets relate to "industrialised countries".|
|Successful mitigation claims have now been brought that provide useful examples for other cases.||If your government is one of the few doing the minimum (or close to the minimum) required by the IPCC targets, it will be harder to take a successful case.|
|They can raise awareness about climate change in your country.||Justiciability is often a barrier for courts hearing mitigation claims.|
|Mitigation claims don't have to ask for specific outcomes (i.e. they can be limited to asking for a minimum level of GHG emission reductions). This can help overcome justiciability arguments.||Some countries have strict "standing" requirements which mean you have to show you are especially affected by climate change to bring a mitigation claim.|
|You may have the option of going to a regional/international body if you don't succeed at the national level.||The general nature of the remedies can lead to problems with enforcement.|
|If all appeal processes are used, claims can take years.|
If you are bringing a mitigation claim, you will usually bring a claim under national human rights, constitutional or administrative law. These types of laws fall within an area of law called “public law”. This is the body of law that regulates the relationship between the State and individuals.
There are many different areas of public law. Each area prevents public bodies from doing certain things or requires them to do certain things, and provides consequences when laws are broken.
Once you have outlined the facts of your case, look at the areas of law below and see which most closely relates to your situation. Then check your national law to see what the law is in your country.
Your legal analysis has to be supported by the evidence you have gathered. You should consider seeking legal advice. A lawyer with expertise in the relevant area should be able to provide advice on the options available to you and advise on your chances of success.
The types of evidence you may need to support your argument will be outlined later in this section.
The specific content of these laws will change in different countries. However, below are the main types of law on which you could have a “cause of action” for a mitigation claim on.
Human rights are the rights and freedoms held by every human being without discrimination. Human rights protect our basic needs and freedoms. Human rights are contained in international human rights instruments, such as:
These rights also often included in national constitutions and human rights laws. It is these laws that you will generally enforce in national courts.
Greenpeace International, a partner of A4J, has created an excellent guide on how to bring a human rights-based climate change case against the government. It goes into detail on:
- Climate science you could use as evidence;
- How to identify enforceable human rights;
- Issues of admissibility (i.e. standing and justiciability);
- How you can prove a violation of your human rights; and
- How to develop a rights-based campaign strategy to complement your case.
If you want to find out more about bringing a human rights-based mitigation claim after reading this section, we recommend reading the Greenpeace Guide.
Climate change poses a serious threat to the enjoyment and exercise of our human rights.
Although it is now quite dated, this is a useful UN paper that provides an overview of the impacts climate change has on different human rights. It provides useful information for human rights-based arguments and has reference to evidence that shows how human rights will be affected.
The following human rights are most clearly affected by climate change:
Governments have an obligation to protect human rights: This obligation requires governments to take action to prevent third parties (e.g. corporations, individuals) from interfering with human rights.
The IACtHR held that the obligation for States to guarantee (i.e. protect) rights under the American Convention on Human Rights included an obligation to prevent significant damage to the environment which would interfere with other rights. This obligation includes:
- A duty to regulate activities that threaten to cause environmental damage which impact other rights;
- A duty to supervise and control such activities; and
- A duty to mitigate environmental damage that is occurring.
The IACtHR made it clear that these obligations apply to climate change.
Key Case to Watch: Álvarez et al v. Peru
In 2019 a group of youths filed a complaint against the Peruvian government for its alleged failure to halt deforestation in the Amazon. The youths have argued that this failure means the government has not taken sufficient action to address climate change. The claimants have also argued that their human and constitutional rights to a healthy environment, life, water and health have been violated.
The claimants are seeking an order that requires the Peruvian government to take mitigation and adaptation measures as well as establish concrete plan to reduce and prevent further deforestation in the Amazon.
The obligation to protect is most relevant because private persons, particularly corporations, are responsible for most GHG emissions.
Focus Point: The Principle of “Shared Responsibility”
A defence often raised by governments in mitigation claims is that climate change is a global issue and no single country is responsible for preventing it.
This is true. But, although the State cannot prevent climate change on its own, preventing climate change is a shared responsibility in which all States must take appropriate mitigation measures to prevent climate change. It should be argued that each State can be held accountable for their share of the responsibility to prevent climate change. In addition, the UNFCCC provides that each of the developed state parties commit to taking steps to limit its GHG emissions within its own jurisdiction, as well as the overarching agreement that this is a shared responsibility amongst all states.
This argument was accepted by the Dutch Supreme Court in Urgenda v Kingdom of the Netherlands.
In deciding which rights to base a mitigation claim on, you need to consider:
1. How does or will climate change affect my human rights?
After you have gathered evidence about the impacts of climate change on your country or region, think about the climate impacts outlined in the introduction to this Guide and the list of rights above. Then narrow down the most relevant rights to your factual situation.
2. What human rights are legally enforceable in my country?
After you have identified the most relevant human rights, you need to check which ones are legally enforceable in your country. Although human rights are universal in principle, they may not all be recognized in a law that you can enforce.
If you want to enforce a human right in national courts, it must generally be contained in:
A group of senior Swiss women used human rights and constitutional law to challenge their government’s inadequate climate policies. Climate change is affecting their human rights through severe heat waves which have profound impacts on their life, health and wellbeing.
Although the claim did not succeed before the Swiss Courts, they argued that their government’s failure to reduce Switzerland’s GHG emissions violates:
1. Their rights to life and to private/family life under the Swiss Constitution; and
2. Their rights to life and private/family life under the European Convention of Human Rights, which can be enforced directly in Switzerland.
There is also a possibility of taking a claim to enforce rights contained in an international or regional human rights treaty in an international or regional human rights body. This is discussed in Alternatives to Court.
Also, even where you are enforcing rights protected in a national constitution in national courts, the interpretation and application of that right to your case could be influenced by how similar rights are understood and enforced at the international level. For more information on how international law can be used in national courts, see What Laws Could I Enforce? in the A4J Going to Court: Q&A
Once you have identified a relevant and legally enforceable right, you need to argue that the government has violated that right. This means that it has breached the human rights obligations it owes you.
In essence, what you will be arguing is that the government’s failure to take adequate mitigation measures (i.e. its failure to reduce its country’s GHG emissions as required by the IPCC and the Paris Agreement) has contributed to climate impacts and, consequently, violated your human rights.
For this argument to be successful, you usually need to show:
You can find more information on this issue in the People’s Guide on Holding Your Government Accountable for Climate Change.
In many countries, there are constitutional or public law principles which make an action or omission of a public body unlawful. Below are some common examples of these principles.
Where there is a law in your country which sets limits or conditions on the government’s powers when it comes to climate policy but the government acts outside those limits, its act can be challenged. For example:
In 2017, an advocacy group brought a case against the Irish government, arguing that the government’s National Mitigation Plan was unlawful and should be quashed, in part, because it violated Ireland’s Climate Action and Low Carbon Development Act 2015.
In July 2020, the Supreme Court issued a ruling quashing the Plan. The Irish Climate Action and Low Carbon Development Act 2015 required the State to put forth at regular intervals a national low-carbon transition and mitigation plan in line with its national transition objective for 2050 (i.e. cutting GHG emissions by 80% of 1990 levels). The Court held that the National Mitigation Plan failed to make clear how Ireland would achieve its 2050 goals under the Act and was unlawful as a result. The Court noted that a lawful plan must be ‘sufficiently specific as to policy for the whole period to 2050.’
If there is climate change legislation which requires the government to take certain mitigation measures and the government fails (or is projected to fail) to do this, this can be challenged.
Key Source: The Law and Climate Change Toolkit
This is a database of legal provisions in different countries that relate to climate change. You can find information on:
- Climate change legislation that exists in different countries;
- An assessment of the quality of climate change legislation in these countries; and
- Recommendations on best practice.
You can use this database to find out whether there is legislation on which you could base a mitigation claim against your government. Alternatively, if you find out your government has no climate law legislation or there are gaps in the law, this could be used to strengthen a human rights-based argument that your government is not doing enough (see above).
See also on Climate Change Laws of the World Database.
Where the government has justified the mitigation measures it is taking under a certain law, but their decision was based on an interpretation of the law which you believe is wrong, the proposed mitigation target could be challenged.
In the UK, an environmental organisation brought a case against the government for failing to revise their 2050 mitigation target after the Paris Agreement.
- The government’s view was that the Paris Agreement’s reference to “pursuing efforts to limit the temperature rise to 1.5 degrees” was only intended to strengthen efforts to limit temperature rises to 2 degrees.
- Plan B argued this interpretation of the Paris Agreement was incorrect and, because the government relied on this interpretation in making their decision not to change the 2050 target, this decision was based on an error of law and was illegal.
The case was recently dismissed by the Court of Appeal. A more obvious case of misinterpretation may be required for future cases to be successful.
If a climate change law in your country has a specific objective, government mitigation measures under this law could be challenged if they are contrary to this objective.
A student from New Zealand challenged the government’s decision not to change their 2050 GHG emissions reduction target after the release of the IPCC’s AR5 report, which stated that tougher targets were needed to avoid dangerous climate change.
The court ruled that an objective of New Zealand’s Climate Change Response Act 2002 is for New Zealand to meet its international obligations under the UNFCCC and take mitigation measures to avoid dangerous climate change. It was contrary to this objective for the government not to review its 2050 target after the release of new IPCC science that required stronger action. However, because the new government had changed its policy shortly before the case was heard, no order from the court was needed and the lawsuit was ultimately dismissed.
Where a law gives the government discretion on what mitigation measures it can take, its decision in how it exercises this discretion could be challenged if you can show that it took irrelevant considerations into account, or it failed to take relevant considerations into account when making its decision.
It was also argued in Thompson that the government’s decision not to revise its 2050 target was because unlawful because the government failed to consider the following factors when it made its decision:
- The costs of dealing with climate impacts;
- The inadequacy of its measures in light of new climate science; and
- The fact New Zealand, as a developed country, has a greater responsibility to take mitigation measures.
The court ruled that these were mandatory considerations but that the government had considered them. Therefore, although one can disagree with the government’s decision, it was not unlawful on this basis.
Irrationality is a principle in which a decision of a public body can be challenged if it is so unreasonable that no reasonable decision-maker could have made the decision.
It was also argued in Thompson that the government’s failure to revise their 2050 target was irrational as, if every developed country adopted that target, the world could not avoid dangerous climate change.
The court rejected this argument as New Zealand’s targets were similar to other countries and had some scientific support. This meant they couldn’t be considered irrational.
This is a high threshold and would likely only be successful if a government was taking no mitigation measures or completely inadequate measures.
In some countries there is a legal doctrine called public trust which requires the government to take measures to protect the shared natural resources of the State.
Example: Juliana v United States
A group of youths argued that the US government’s failure to take appropriate mitigation measures violated the public trust because it demonstrates the government is not taking adequate steps to protect the natural resources of the State (which will be impacted by climate change).
In 2016, the Oregon Federal Court denied a motion to dismiss their claim, ruling that they had a reasonable claim based on the doctrine of public trust.
However, in 2020, the Ninth Circuit Court of Appeal dismissed the claim on the grounds the youths did not have standing and the claim concerned a political question. These issues are addressed in other parts of this Guide.
There are a limited number of cases where a public trust claim succeeded. However, the success of the case was dependent on the incorporation of the public trust doctrine into the state’s constitution.
Check your country’s constitution to see the doctrine has been incorporated into your constitution.
To be able to bring a constitutional, public law or human rights claim, you must have “standing” (i.e. the legal right to bring a claim).
The following types of people can often have standing to bring public law claims. But you have to check this in your country’s legal system:
Claims can generally only be brought by the person who has been harmed when a national law is broken.
Some jurisdictions permit multiple affected individuals to be represented collectively by a claimant. These actions may be called a “group”, “collective” or “class” action.
In mitigation claims, a person or group of people who have been or will be affected by climate impacts could potentially have standing. However, a difficulty in some countries is that you will have to show that climate change will affect you in a way that is different or worse than how it will affect other people. This special impact could be because of:
In 2018, the Swiss Federal Administrative Court dismissed a mitigation claim brought by a group of senior women on the basis that everyone in Switzerland would be affected by climate change and the women would not be particularly affected.
The decision was appealed to the Swiss Supreme Court. The group bringing the case argued that the women, due to their age and gender, are particularly affected by heatwaves which are connected to climate change. However, the appeal was rejected on the basis of the court’s view that fundamental human rights will not be breached until the Paris long-term temperature goal has actually been exceeded. Other courts may not follow this reasoning.
Claimants do not always have to be individuals or groups of individuals. For example, a Wildlife Trust that owns a nature reserve affected by climate change might be permitted to bring a case.
In some countries, groups that have an interest in a particular issue can bring a case that involves that issue even if they aren’t personally affected.
In the Netherlands, claims can be brought by groups that involve public or collective interests, as long as the group represents these interests.
It was ruled that the Urgenda Foundation, a citizens’ platform founded to prevent climate change, was able to bring a mitigation claim.
In other countries, such as the Philippines and Uganda, there are “open-standing provisions”, where persons can seek to enforce environmental legislation and constitutional provisions without showing harm. Check if this possibility exists in your country.
For more information, see Who Can Take Legal Action?
For mitigation claims, the appropriate defendant could be:
Mitigation claims are also typically brought against industrialised countries (e.g. USA, Germany, Argentina etc) who are responsible for a large proportion of global GHG emissions.
Focus Point: Common but Differentiated Responsibility (CBDR)
This principle is contained in the UNFCCC and the Paris Agreement. It means that developed countries should have the greatest responsibility to reduce GHG emissions as they are most responsible for climate change and have the greatest ability to prevent it.
The principle of CBDR could make it more difficult to bring a mitigation claim against a developing country:
However, this doesn’t mean it’s impossible to bring a mitigation claim against a developing country.
This is a mitigation claim thatis being brought against the government by a woman in rural Pakistan. She is arguing the government’s complete failure to reduce its GHG emissions and approve green energy initiatives violates her constitutional rights to life, dignity and a healthy environment.
It may also be possible to bring a mitigation claim against a foreign country.
Area to Watch: Extraterritorial Human Rights Obligations
There is growing acceptance that governments human rights obligations extend to persons outside their borders. It may therefore be possible to bring a mitigation claim against a government of another country where their failure to reduce GHG emissions has impacted your human rights.
For example, a claim in a court in France in relation to emissions from France might include Claimants from Fiji. This is potentially important because the people often most damaged from climate change are from states which group contribute least to global emissions.
In public law actions, it’s the claimant who has the “burden of proof”. This means the person bringing a civil claim needs to prove their case.
One of the first things you need to do then to bring a successful claim is gather evidence that will be accepted in court. You need to have a set of facts that describes what happened and evidence that supports your “version of events” (i.e. what you are saying happened).
When you are bringing a mitigation claim, you will need evidence to support 5 things:
You will need to provide evidence that:
Useful and publicly available sources of evidence were outlined in Climate Litigation Basics.
When presenting evidence on climate impacts, you should focus on the particular climate impact that affects you and your community.
You need to outline the minimum rate at which your country should reduce its GHG emissions over a certain period of time (“the minimum appropriate mitigation target”).
To do this, first, identify the maximum safe global temperature increase your claim will be based on. Different limits are used in the IPCC studies and the Paris Agreement. The main ones are:
Climate science and the current international consensus point in favour of the 1.5°C limit. However, a key factor in choosing a target can be what mitigation target is set in your country’s national law.
Secondly, identify the minimum targets of GHG emission reduction that your country must follow to stay within the 2°C or 1.5°C limit. This will depend on: (1) the temperature limit you pick; (2) your country’s level of development; and (3) any legal/political commitments your country has made. For example:
The extent to which your country has contributed (and will likely continue to contribute) to climate change has to be proven. This can be done by:
Key Source: Climate Action Tracker
This is a very useful scientific analysis that tracks government climate action and measures it against the objectives of limiting global temperature rises to 1.5°C and 2°C. It provides information on a country-by-country basis on:
- The level of GHG emissions of different countries;
- The climate action governments have already taken (i.e. their current levels of GHG emissions reductions);
- The pledges and commitments governments have made to reduce GHG emissions; and
- An analysis of whether individual countries are doing their “fair share” on the basis of their level of development.
These statistics need to be compared with the minimum appropriate mitigation target which you identified. This provides the basis of your argument that your government is not doing enough to prevent climate change.
In certain cases, the specific loss or damage the you have suffered, are suffering or will likely suffer as a result of climate change needs to be detailed. This may include:
Evidence on specific loss and damage will be particularly important in the following cases:
In contrast, evidence of specific loss and damage is not generally required where:
The specific loss and damage your claim is based on needs to be consistent with and supported by the climate science on the impacts of climate change on your country or region.
Practical Tip: Sources of Evidence
Useful evidence to demonstrate personal loss, injury and damage include:
- Witness statements from yourself and people in your community/group who have been affected by climate change impacts;
- Photographs, videos and satellite images;
- Environmental samples from the local area demonstrating environmental harm (e.g. ocean acidification);
- Local scientific, university, NGO/CSO and government reports, and an expert witness which corroborates the harm claimed by witnesses; and
- News reports of extreme weather events in the area.
This evidence also needs to relate to the legal basis of your claim. It is not enough to show that climate change affects you and that emissions in a country are inconsistent with the Paris Agreement. The evidence has to support your legal argument that your government’s failure to reduce its GHG emissions corresponds with the breach of a legal obligation. See the sub-section above for examples of what the legal basis of your claim could be.
Mitigation claims are usually taken in national administrative or constitutional courts.
The procedure that you have to follow will depend on whether you live in a “common law country” or “civil law country”. The law in your country will outline a judicial review, constitutional petition or amparo process, so that you can bring a claim to the courts and the court may review the situation and provide a remedy.
Focus Point: Limitation Periods
A limitation period imposes a time limit within which a claimant may bring a case. The limitation period depends on the precise cause of action and will dictate the amount of time you have to file your case in court. If you do not file your case within the relevant limitation period, you may be prevented from bringing the claim.
Research the law in your country to determine the relevant limitation period for your claim. You will also need to identify when the time starts running for the limitation period. Time may start running from one of the following:
- The date the harm occurred (e.g. when a forest fire occurred);
- The date you learned about the harm; or
- The date the government made the specific policy decision or took an action that you are challenging.
In climate cases, it can be argued that there is “continuing harm” because the threat of climate change and the government’s failure to take sufficient action are ongoing. In some systems, the time limit will not begin to run where the harm in continuing.
It may also be possible to apply for the limitation period to be extended.
Generally, you will have to meet the following requirements to bring a constitutional or administrative claim:
Write a formal letter to the proposed defendant setting out the proposed claim and what you wish to achieve. A response is usually requested from the defendant.
Submit your "claim form" to court within the required "time period" (there is usually a number of months of years after the incident within which you must file your claim).
Present your grounds for the claim to the court, which will be shared with the defendants. This document can be referred to as a "statement of claim", "statement of case", "particulars of claim" and "complaint". This then have to be shared with or "served" on the defendant.
In some countries, you have to apply for permission to bring a public law claim. This is a process where your claim is vetted to see if it's credible or has reasonable prospects of success before the defendant has to respond. The defendant can present arguments at this stage. In other countries, the claimant does not have to apply for permission but the defendant can make an application to dismiss the case or apply for summary judgment. The court will then decide whether the case is sufficiently credible or has reasonable prospects of success in order to decide whether to allow it to continue.
Defendants will then have a chance to explain their position. They can either accept all or part of your claim, or deny your version of events in full. This document is known as the "defence".
You and the defendant may be asked to share the evidence you are relying with each other. If you are using witnesses, you will usually need to include what they are going to say in a "witness statement" or "affidavit".
At the hearing, you will present your arguments, including a review of the key evidence already likely filed with the court, witnesses may give oral evidence and can be questioned by the lawyers. The court then makes its decision.
The losing party generally will have the right to appeal this judgement before a higher court.
Focus Area: Complaints to Regional and International Human Rights Bodies
If your claim is based on human rights, in some countries there is also the option to bring your case to a regional or international human rights body if you have been unsuccessful in national courts.
For more information, see Individual Complaints to Regional and International Human Rights Bodies.
If you bring a successful mitigation claim against the government in human rights, constitutional or public law, you could get one or more of the following “remedies”:
Declaratory judgements are decisions where a court simply finds that the government has acted unlawfully but doesn’t tell them what to do.
Asking for a declaratory judgment that your government’s climate policy is unlawful can be a useful way of anticipating justiciability arguments that the court is being asked to make decisions which should be left to political bodies. By not asking the court to tell the government exactly what to do, you can argue that the separation of powers is being respected (for more information, click here).
Practical Tip: Using Declaratory Judgments to Your Advantage
Base your argument that the government has acted unlawfully on the fact that it has failed to reduce its GHG emissions in line with specific mitigation targets outlined in the IPCC Reports.
If the court rules that a government has acted unlawfully because it hasn’t reduced its GHG emissions by a specific minimum amount (e.g. 50% on 1990 levels by 2030), it implies a specific obligation for the government to reduce its GHG emissions by that amount.
If you believe your government has not properly enforced a declaratory judgement, you can go back to the court and ask them to define and enforce their judgement.
If a court finds that the government has violated its obligation to protect, it may order the government to do the things it should have done. A court order in a mitigation claim could:
If you can get a court order, this can make the process of enforcing your judgement easier.
The Dutch Supreme Court ordered the government to reduce its emissions by 25% (compared to 1990 levels) by 2020. The government has the discretion on how it implements this order (i.e. what policies it will take).
Example: De Justicia
In this case, the claimants were group of young people in Colombia who claimed that their rights were infringed by the Colombian government’s failure to do more about reducing climate change by reducing deforestation.
The Colombian Supreme Court ordered government departments and ministries to prepare a plan within a specific timeframe to counteract the rate of deforestation.
The Irish Supreme Court reversed the lower High Court decision and issued a ruling quashing the government’s National Mitigation Plan.
It is important to remember that the affected individuals and communities should lead on deciding which remedies are appropriate, as opposed to NGOs or lawyers. Consider the community impacts of each possible remedy.
If you want more information:
If you are considering bringing a mitigation claim against your government after reading this section, we recommend that you download the Action4Justice Mitigation Claim Template.
Key Resource: The Action4Justice Mitigation Claim Template
The Template provides a skeleton for people to follow if they want to bring mitigation claims. The Templates have been designed by legal professionals with expertise in climate litigation.
The Templates aim to encourage effective use of the law to bring climate related litigation in appropriate cases by providing:
- An appropriate format for drafting a document in which to make a claim (“the legal complaint” – paragraphs, font, page numbers, title, headings etc);
- An effective structure in which users can place their legal and factual arguments regarding climate change;
- An outline of the arguments that could be used when bringing climate litigation; and
- References to climate science and cases to help the user build a strong case.
While your complaint needs to be different depending on what country you are taking a legal case, the Template provides useful tips and guidance to get you started if you are thinking about using legal action for climate justice.