Climate Litigation Reaches Italian Courts

The Giudizio Universale decision of the Tribunal of Rome of 26 February 2024 is Italy’s first climate litigation case. As such, it is part of a wider transnational phenomenon. In my analysis, I show how the decision interacts with litigation in other countries. Beforehand, I situate the judgment in the Italian legal order.

Particularly, the dismissal of the case on jurisdictional grounds for concerns of separation of powers shows the difficulty of translating a transnational legal argument, essentially derived from the Urgenda litigation, into national legal orders. Specifically, the main contextual obstacles to the success of Urgenda-like claims in Italy are two, which will also make it more difficult to rely, in domestic cases, on the recent decisions by the European Court of Human Rights. First, longstanding tort law doctrines bar ordinary courts from holding the State liable for the exercise of legislative powers; second, the lack of a framework climate change legislation makes it impossible to raise a case before the Constitutional Court. Overall, it is rather difficult for national courts to intervene and adjudicate the adequacy of Italy’s systemic mitigation efforts.

At the same time, the Giudizio Universale litigation also contributes to the gradual development of transnational legal arguments, specifically as to the relationship between the domestic legal order and the Paris Agreement, often invoked in domestic climate litigation as a source of mitigation obligations.

A brief summary of the case

More than 200 individuals and ecologist associations sued the Italian State before the Civil Tribunal of Rome, basically arguing that the State’s efforts to mitigate climate change are insufficient to meet the Paris Agreement targets, which, admittedly, actually appears to be the case. They submitted that climate change adversely affects, among others, their right to life (Art. 2 ECHR and Art. 2 It. Const.), to health (Art. 32 It. Const.), and to private and family life (Art. 8 ECHR). Since the State must protect said fundamental rights, it is under a positive obligation to combat climate change, a line of argumentation adopted also by the ECtHR in KlimaSeniorinnen (para. 431-436; 478; 519).

Regarding the remedies sought, the applicants asked the Tribunal to declare the State non-contractually liable under art. 2043 of the Italian Civil Code for having failed to take the necessary mitigation measures. Moreover, the plaintiffs requested the grant of a remedy under art. 2058 of the Italian Civil Code, according to which “the injured party may request restoration in kind when this is possible in whole or in part”. Specifically, in the absence of any framework legislation for climate change action in Italy (see infra), the plaintiffs asked the Tribunal to order the State to “take all necessary measures, including legislative measures, to reduce artificial national CO2-eq emissions to 92% below 1990 levels by 2030″ (emphasis added).

The Tribunal found that it did not have jurisdiction over the claims and did not have the power to grant the remedy requested because “the complaints lodged are directed against the political choices made by the holders of State sovereignty as to the concrete ways in which they combat climate change” (p. 12 of the judgement): it is not for ordinary courts to order the legislature whether to pass legislation and of what content.

This case, though unsuccessful (albeit plaintiffs will probably appeal it), contributes to showing the growing relevance of climate change in the Italian legal context. In this respect, the constitutional reform of 2022 must be mentioned. Specifically, para. 3 of Art. 9 was added, which reads: ‘[the Republic] protects the environment, biodiversity and ecosystems, also in the interest of future generations’. Moreover, Art. 41 provides that the right to conduct a business, though protected, cannot conflict with social utility, security, freedom, human dignity, and, after the reform, health and the environment.

The new provisions, somewhat similarly, e.g., to Art. 20a of the German Basic Law (see the BVerfG decision in Neubauer, para. 112), create general principles addressed at all State powers, and mainly at the legislator, rather than actionable subjective rights. Moreover, although they do not expressly mention it, the duty to take action against climate change is inherent therein: the mitigation of climate change is the precondition for the protection of both the environment and the ecosystems.

However, neither the plaintiffs, who initiated the proceedings before the constitutional reform was adopted, nor, regrettably, the Tribunal considered these new provisions, which, in any case, wouldn’t have fundamentally changed the outcome of the case.

Non-justiciability and climate litigation

The main ground the Tribunal invoked for dismissing the case was that, in the Italian legal order, except in the case of failure to transpose EU Directives, the courts are prevented from holding the State liable for the (non-)exercise of legislative prerogatives on the grounds of the separation of powers and due to the consideration that the exercise of legislative prerogatives is free in terms of the objectives it pursues. Similarly, ordinary courts are prevented from ordering the State and its bodies to enact new legislation. Consequently, and despite the fact that a similar remedy was granted in France, recourse to the remedy of the restoration in kind, which depends on the establishment of non-contractual liability, was excluded.

On this note, the ECtHR just reiterated in KlimaSeniorinnen that “Article 6 [ECHR] cannot be relied upon to institute an action before a court for the purpose of compelling Parliament to enact legislation”, accepting that “maintaining the separation of powers between the legislature and the judiciary is a legitimate aim as regards limitations on the right of access to a court” (para. 609 and 627).

The Rome Tribunal’s judgement is not singular in dismissing the case on jurisdictional grounds. Among many, the US Court of Appeals for the 9^th Circuit dismissed the case in Juliana by holding that “the plaintiffs’ case must be made to the political branches or to the electorate at large” (p. 32); so did the Federal Supreme Court of Switzerland in KlimaSeniorinnen (para. 4.4.) and, with regard to the exercise of legislative prerogatives, the French Conseil d’État in Commune de Grande-Synthe (para. 2).

The Hoge Raad in Urgenda, the BVerfG in Neubauer, and the Irish Supreme Court in Friends of the Irish Environment all reached the opposite conclusion and allowed the case, placing the protection of individual rights above considerations of the separation of powers.

The absence of framework legislation on climate change

A review of the above cases reveals a correlation: when plaintiffs asked courts to compel the political branches to enact new legislation, they often failed due to separation of powers considerations (as in Giudizio Universale; Urgenda is an exception in this regard). Conversely, in cases where they sought the review of existing framework legislation, their claims were often deemed admissible.

Intuitively, it is one thing for the courts to review existing legislation and determine whether it adequately protects fundamental rights; it is quite another for judges to order the respondent governments to enact new legislation with specific content, thus indirectly creating new legislation.

As to Italy, despite pending legislative proposals (nos. 743 and 1007 before the Senate and no. 1082 before the House), it lacks a framework climate change law setting out the overall objectives and the main policies, thus also implementing the new constitutional provisions. Instead, climate change regulation is sparse and consists of a large number of sectoral legislative and regulatory acts. There are two general planning documents: the National Integrated Energy and Climate Plan, adopted under the EU Regulation 2018/1999, and the Ecological Transition Plan. However, these are political documents without normative force, in need of further legislative and administrative implementation.

Significantly, this also translates into an obstacle to mounting a constitutional case addressing, also in light of the new constitutional provisions, the systemic efforts in climate change mitigation undertaken by Italy. In fact, under art. 134 of the Italian Constitution, the Italian Constitutional Court is only empowered to review existing legislative acts and not also the (omissive) conduct of public bodies.

International climate change law in domestic litigation

Finally, as in cases in other jurisdictions, the claimants in Giudizio Universale argued that the temperature target set out in the Paris Agreement limits the legislator’s discretion in elaborating its climate policy. Interestingly, they argued that the Italian legislator is bound by scientific evidence, in this case, as incorporated in the Paris Agreement. This approach, though not uncontroversial, is comparatively novel and helps to better understand the arguments used in other litigation.

Article 2 of the Paris Agreement sets the objective of limiting “the increase in the global average temperature to well below 2°C above pre-industrial levels,” subsequently lowered at the COP 26 in 2021. Although the Paris Agreement does not create international obligations for the Parties to reduce their greenhouse gas emissions, the targets it sets are considered to reflect the scientific consensus on the level of mitigation required.

Be that as it may, the Paris Agreement is often invoked by claimants in domestic litigation, generally by developing two different arguments, both present in the claimants’ arguments in Giudizio Universale: first, as a direct source of obligation for the States and, second, “as evidence of fact, to show that a failure to limit the temperature increase to 1.5°C above pre-industrial levels poses the threat to life […], and that there is an international consensus to that effect” (Plan B. Earth v. Prime Minister, para. 52).

While the first line of argument has generally failed, the second has been, to some extent, more successful.

Among the courts that rejected it, the English High Court of Justice stated that “the problem is that the Claimants are using compliance with the Paris Temperature Limit as a test for compliance with Article 2 (and Article 8) [ECHR]. The effect is that the Court is being asked to enforce the Paris Agreement [an unincorporated treaty]” (para. 53).

On the contrary, the Hoge Raad, the BVerfG, and the Conseil d’État used this argument themselves, ultimately determining the content of the State’s duty to take action against climate change in the light of the targets set out in the Paris Agreement (see respectively para. 7.2 of Urgenda, para. 205-210 of Neubauer, para. 12 of Commune de Grande-Synthe). The ECtHR also adopted a similar reasoning in KlimaSeniorinnen (para. 104-120; 542-548).

In Giudizio Universale, the applicants, after claiming that the Paris target temperature reflected the general consensus of the scientific community, argued that the Italian State was bound, under constitutional and international law, to apply the best available scientific knowledge, which limited its discretion and served as a parameter for the validity of its decisions. In this way, scientific findings, which are descriptive in nature, become constitutional imperatives of a normative nature.

Given the implications of this argument for the separation of powers and for democratic legitimacy, the clarity with which it is presented in Giudizio Universale is certainly to be welcomed, not least because it clarifies the meaning and the implications of invoking the Paris Agreement “as evidence of fact” of the need to stay within the Paris target temperature and of the scientific consensus in that regard, as above discussed.

Climate litigation in Italy – some takeaways for the time being

With Giudizio Universale, climate litigation has found its way to Italy. This case has many aspects in common with the general transnational phenomenon, both in terms of the structure and content of the legal arguments used. It also highlights the difficulties that legal procedures, especially in tort law, face in living up to the high social expectations of legal and political change connected to this kind of proceedings.

Transnational climate litigation is certainly a conversation in which arguments are confronted and gradually refined, building on the experiences of others and adapting them to the specificities of each jurisdiction. The Rome Tribunal has now joined this conversation: unlike more ‘progressive’ courts, which have challenged pre-existing legal and constitutional arrangements and adapted them in the face of the existential threat that climate change surely poses, the Rome Court has confined itself to applying long-established doctrines and rules of the Italian legal order that limit the role of the judiciary vis-à-vis the legislature; without fundamentally challenging them, the Tribunal couldn’t allow the plaintiffs’ case, frustrating as such an outcome that might be perceived by many, also in light of the many cases in which foreign courts entertained similar claims.