The total number of climate change court cases has more than doubled since 2017 and is growing worldwide, according to the UN Environment Program (UNEP) and the Sabin Center for Climate Change Law at Columbia University. Most of the cases are pending in the US, however the EU and (even more significantly) developing countries are facing an increasing number of disputes, related to the purported inaction of the States in the fight against climate change. The Court of Rome recently decided the first climate change litigation brought in Italy, dismissing the case for lack of jurisdiction.
By writ of summons served on June 4, 2021, seventy nine private citizens and twenty four associations (the Plaintiffs) sued the Italian State for breach of its “climate obligations”. In particular, the Plaintiffs asked the Court of Rome to force the Italian State to implement appropriate regulatory measures to reduce greenhouse gas emissions (by 92%) and namely to review the current climate action enacted by the Italian State and to amend the National Integrated Energy and Climate Plan (the national energy and climate policy plan, issued in the compliance with EU Regulation 2018/1999 and providing for the goals set for 2030 in order to, inter alia, reducing greenhouse gas emissions).
According to the Plaintiffs, (i) the “climate obligations” can be found in national, EU and international law sources such as the Constitution of the Italian Republic, the European Convention on Human Rights (ECHR), the Paris Agreement on the Climate of 2015 among others; (ii) the failure to adopt appropriate measure implies a violation of fundamental and inalienable rights of the individual, including the right to life, food, water, health, a healthy environment, adequate housing and property, self-determination in the use of natural resources as well as a stable and safe climate. Therefore, the Plaintiffs grounded their claim on non-contractual (tort) liability provisions, namely Articles 2043 (general extra-contractual liability rule) and 2051 (liability of the custodian for damages deriving from the item under its custody).
The Italian State objected, preliminarily, the inadmissibility of the claim since it was aimed at obtaining an order “for encroachment and excess of jurisdictional power”, and the lack of jurisdiction of the ordinary courts, and, on the groundlessness of the claim for liability of the Italian State, given the absence of any civil obligations to be fulfilled.
The Italian State argued that a decision forcing the Italian State to adopt certain measures to reduce greenhouse gas emissions would have resulted in an “inadmissible intrusion of the judiciary into the sphere of competence of the Parliament and the Government, thereby violating the higher principle of the separation of powers”.
The Court of Rome upheld the defendant’s arguments, dismissing the claim for:
- lack of absolute jurisdictions, since decisions on how and when to deal with climate change fall under the sphere of competence of political bodies and cannot be disputed within ordinary proceedings, because this would imply a breach of the principle of separation of powers;
- the invoked liability of the Italian State could be found only in the event that a violation of European Union law is ascertained;
- as to the request to obtain a review of National Integrated Energy and Climate Plan, the relevant claim could be brought before Administrative Courts rather than Civil Courts.
Irrespective of the outcome of the proceedings, it is evident that the Court of Rome clearly recognised that the climate situation is a serious planetary emergency and does not exclude the possibility of judicial protection in the event of a violation of the European law (in this case the Plaintiffs did not make such an allegation). Moreover, the Court admitted that Administrative Courts can review the legitimacy of the Italian State’s National Integrated Energy and Climate Plan. The outcome of the Appeal proceedings are yet to be seen, but for the time being the Court of Rome did not close the door to climate change litigation in Italy.
This is not only relevant for States, but also for companies. As confirmed by the Global Climate Litigation Report: 2023 Status Review, “most ongoing climate litigation falls into one or more of six categories: 1) cases relying on human rights enshrined in international law and national constitutions; 2) challenges to domestic non-enforcement of climate-related laws and policies; 3) litigants seeking to keep fossil fuels in the ground; 4) advocates for greater climate disclosures and an end to greenwashing; 5) claims addressing corporate liability and responsibility for climate harms; and 6) claims addressing failures to adapt to the impacts of climate change”[1].
As far as corporate responsibility is concerned, the report highlights the first decision issued in the EU, in the Netherlands, which found a private company to have a duty under the Paris Agreement. In fact, on May 26, 2021, a Dutch court ordered oil and gas company Shell to comply with the Paris Agreement and reduce its carbon dioxide emissions by 45 per cent from 2019 levels by 2030[2].
The issue of a corporate duty of care was also analysed by a local French Court. On January 28, 2020, plaintiffs filed a complaint asking Nanterre Court to order French oil company and carbon major Total to make its conduct compliant with the goal of limiting global warming to 1.5 °C. On July 6, 2023, the pre-trial judge dismissed the preventive lawsuit since no plaintiff has standing concerning climate change since it is a worldwide issue.[3]
The Court of Rome case confirms a strong activism on climate change also in Italy. It is worth noting that also Corporations needs to be prepared in preventing the risk that this type of actions, irrespective of their outcome, would pose a threat to their reputation or their value. According to research carried out by the Centre for Climate Change Economics and Policy, several cases have been brought forward against Carbon Majors for failing to properly inform the public of the risks of climate change[4]. Researchers analysed 98 majors publicly corporations listed in US or Europe stock exchanges during the period 2005-2021 and they found evidence that “on average, case filings lead to an abnormal decrease in share prices by -0.35% over the 3-day window from the day before and after the filing”. Negative court decisions had a “larger effect of -0.99%, with the combined cumulative average abnormal return for filings and negative decisions being -0.41%, relative to expected values”.[5]
The decision of the Court of Rome is a clear sign that climate change litigation is becoming a reality in Italy. Corporations and multinationals should be aware of this trend, prioritizing the enactment of their ESG policies to prevent serious litigation, economic and reputational risks.
*Trainee Arcangela Gerbino also contributed to this article.
[1]https://wedocs.unep.org/bitstream/handle/20.500.11822/43008/global_climate_litigation_report_2023.pdf?sequence=3 (last seen March 6, 2024).
[2] Milieudefensie et al. v. Royal Dutch Shell plc., The Hague District Court, C/09/571932 / HA ZA 19-379, 25 April 2022 (Netherlands).
[3] Notre Affaire à Tous and Others v. Total, Judicial Court of Nanterre, March 5, 2024.
[4] For example, in Commonwealth v. Exxon, the Massachusetts Attorney General accused the firm of failing to disclose climate change risks, failing to disclose its products’ impacts on climate change, and greenwashing.
[5] M. Sato, Glen Gostlow, C. Higham, J. Setzer and F. Venmans, Impacts of climate litigation on firm value, Centre for Climate Change Economics and Policy, Working Paper No. 421, ISSN 2515-5709, May 2023, https://www.cccep.ac.uk/wp-content/uploads/2023/05/working-paper-397_-Sato-Gostlow-Higham-Setzer-Venmans.pdf, (last seen on May 6, 2024)
