By MAVIC CONDE
LEGAZPI CITY, Albay — When it comes to climate change cases, are the Philippine courts ready?
“It should be ready. It’s about time that both local and international courts execute their role,” La Union-based, long-time environmental campaigner Tina Antonio told Bulatlat in an interview.
Antonio said that while activism can delay detrimental development plans, it is litigation that can concretely halt such projects. “Litigation gives people a fighting chance,” she said.
The question, according to Antonio, is how exactly do we demand accountability through climate litigation.
The United Nations Environment Program refers to climate litigation as “cases that relate specifically to climate change mitigation, adaptation, or the science of climate change.”
The recently released Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) by the Working Group 3 highlights the growing importance of climate litigation on climate governance. In Section E.3.3 of the summary report for policymakers, the IPCC acknowledges how “climate-related litigation is growing” and “has influenced the outcome and ambition of climate governance.”
Model cases: ‘systemic mitigation’
One of the cases cited in the full report was the landmark Urgenda case vs the Netherlands in 2019 which compelled the Dutch State to increase its mitigation efforts. This kind of legal option is known as a ‘systemic mitigation’ lawsuit since it underscores the States’ legal duty to minimize the risks of climate change for its jurisdiction. It has inspired many to follow suit and get similar results, including France, Germany, and Ireland.
In 2021, Senior Legal Associate at Urgenda Foundation Lucy Maxwell and her co-authors published a study that looks at national court decisions resulting from systemic mitigation cases. The aim is to provide a framework for “litigants and courts in human rights- and tort-based cases in light of international law and best available science,” according to the study.
The authors summarized court judgements in an article they wrote for the Global Network for Human Rights and the Environment (GNHRE) as standards for mitigation measures courts can use in assessing government efforts to reduce greenhouse gas emissions and raise ambitions.
These include the following:
- Climate mitigation efforts must be based on the Paris Agreement long-term temperature goal of 1.5 degrees Celsius
- Determine each country’s ‘fair share’ based on the “principles of equity and common but differentiated responsibilities”
- Carbon neutrality is a goal with a specific date, which for developed countries should be before 2050
- Short-term and long-term mitigation measures must be scientifically aligned, consistently
- Increases in ambition over time as a proof of progression
- No excessive reliance on negative emissions technology
- Detailed action plan on achieving emissions reductions
What it means for the Philippines
The much-anticipated result of the 2015 landmark inquiry of the Commission on Human Rights on the accountability of the world’s top polluters is parallel with the above-mentioned court rulings.
While it took a while for the CHR to produce the final result, many court rulings, according to the above-mentioned study authors “have [already] recognized that the State has a legal duty under existing HR law to undertake mitigation efforts in light of the current and projected harm caused by climate change.”
This recognition of the justiciability of systemic mitigation cases is an important threshold, according to the authors.
Leon Dulce of Kalikasan People’s Network for the Environment said in a Zoom interview that the findings of the CHR report should be used as a point of leverage to challenge Philippine courts.
For PMCJ’s legal counsel Aaron Pedrosa, the lack of transition from plans into action is the country’s biggest hurdle for aligning our existing mechanisms to the current climate science. The current global warming of 1.1 degrees Celsius is already causing unprecedented catastrophes, stretching thin the limits of natural and human systems for adaptation.
He added that the government agencies that have the power to make the transition happen have disregard for climate science, including the Department of Energy and the Department of Environment and Natural Resources.
“The urgency to address the climate emergency is non-existent, [that] even the resolution of the Congress to declare a climate emergency is empty [without the needed action,]” he says.
Climate Action Tracker, an independent group that scientifically assesses government climate actions, likewise puts an emphasis on a ‘Paris-compatible’ action for the Philippines, especially in terms of decarbonisation by “explicit and distinct focus on mitigation” and just transition, not just creating green jobs.
These according to Dulce are symptoms of how reactive Philippine environmental laws are. He said that even with precautionary principle provisions embedded in our environmental laws, if subsumed under weak, unjust policy frameworks, policies would end up reactive and conservative instead of preventive and progressive.
One example he cited was the Writ of Kalikasan which he described as a tool that can be weaponized in an unfair playing field between the haves and have nots. According to him, it cannot remedy existing laws, including implementing rules and regulations that are in the first place weak in holding violators accountable.
Nonetheless, Pedrosa said complaints and cases like these are expected to increase, spelling this message out: climate action is a legal duty and the lack of it, as well as the deliberate attempt to delay effective action is a litigation risk for both the government and private sector.
Pedrosa says that the climate justice movement is also focused on policy reform of financial institutions. Just this month, the groups in this movement considered it a win when the World Bank Board and its private funding arm International Finance Corporation created the Management Action Plan for Rizal Commercial Banking Corporation (RCBC). The plan includes the commitment to assess and address the environmental and social harms of its 19 coal plant projects in the Philippines, as a result of a complaint filed by the coal-affected communities.
Since 2015 climate change-related cases “have more than doubled, while over 1,000 cases have been brought in the last six years,” according to Grantham Research Institute on Climate Change and the Environment.