The future of Italian “climate litigations” is being decided

In May 2023 Greenpeace, Recommon and some Italian private citizens sued Eni s.p.a., the Italian Ministry of Economy and Finance and an Italian financial institution named Cassa depositi e prestiti s.p.a. because of their contribution to climate change. The plaintiffs claimed that Eni has contributed to causing the climate crisis with its emissions of CO2 and, therefore, since this is determining real damages and risks for the environment and people’s health, Eni is violating human rights. More precisely, the defendant’s responsibility has been understood by the plaintiffs as a non-contractual liability pursuant to article 2043 of the Italian civil code. They held that the defendants violated, intentionally or negligently, human rights protected by the Italian Constitution, the ECHR and the Nice Charter. Hence, they have caused undue damage and, consequently, they must compensate it and cease the harmful behaviours. The other two defendants have been sued because they have a control over Eni s.p.a., and, thus, they are deciding its damaging policies too.

For the plaintiffs this lawsuit is part of the “climate litigations” and the court should follow the jurisprudence developed by other countries on the same topic. It concerns the division of powers between legislative and judiciary, more specifically whether the judges have jurisdiction on these matters since it can also be seen as something that requires a political evaluation that must be made by the legislator. This is a really big deal, since deciding in favour of the jurisdiction of the judge means giving to citizens an instrument to directly address climate change related problems.

Anyway, all defendants objected to Italian judges deciding on this matter due to the problem being connected to the division of powers and two other reasons. In their opinion, otherwise judges would: exercise a legislative power; infringe art. 41 of the Italian Constitution which guarantees the freedom of economic enterprise; step over the authority of the foreign judges, since the damaging behaviours have not taken place in Italy. To avoid dealing with all the substantive issues and then being dismissed for a lack of jurisdiction, the plaintiffs decided to immediately address the problem. They presented an appeal for the regulation of jurisdiction in front of the Cassazione (the Italian Supreme Court), so that the decision of who is to be the competent judge for such matter can be clarified once and for all.

Regarding the lack of jurisdiction by reason of the division of powers in the State, the defendants’ argument is, in short, that otherwise it would mean that the judge can establish the economic policy guidelines. In their opinion, the Parliament power would be unlawfully limited by a suitability assessment of the measures implemented by Eni to reduce the emissions caused by its activities made by the judge. In fact, the judge would basically decide on the binding policy concerning climate change that private enterprises would need to apply. However, the implementation of such policies would require also socio-economic evaluations and, therefore, must be done by the legislator.

Since this issue has already been tackled by other “climate litigations” it is useful to look at some of the arguments used in these to see other possible perspectives on the matter. Furthermore, the plaintiffs have cited these and other decisions to justify their position.

They have mentioned the ECtHR judgement in the case Verein KlimaSeniorinnen Schweiz v. Switzerland which recognized both the fundamental role played by national courts in assuring the compliance with the ECHR (RICORSO PER REGOLAMENTO PREVENTIVO DI GIURISDIZIONE , 2023) and the protection that it provides from climate change effects. The association of senior women Verein KlimaSeniorinnen Schweiz invoked the ECtHR, after having exhausted all national remedies, against their State because its policies contributed to worsen climate change and, consequently, the heatwaves that threaten their health and their lives. The Court sentenced that art. 8 of the Convention, which represents the bare minimum protection of human rights that must be guaranteed in Europe, entails a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life. Hence, since Switzerland failed to comply with its positive obligations under the Convention concerning climate change, it violated art. 8 (KlimaSeniorinnen v Switzerland (ECtHR), s.d.). This confirms that all the countries that signed the ECHR must guarantee the right to life also by trying to mitigate climate change. Moreover, the ECtHR argued that, even if the courts cannot replace the role of the Parliament and the Government in the fight against climate change, the idea of democracy implies that the standards of the Rule of Law are being taken into account. Therefore, the fact that the decisions are being taken following the will of the majority of the population does not necessarily ensure that democracy is being respected. To achieve that, courts that oversee the compliance with the Rule of Law are also needed, hence, in doing so the judges are not stepping over the parliament or the government (RICORSO PER REGOLAMENTO PREVENTIVO DI GIURISDIZIONE , 2023).

Another lawsuit that is considered relevant for the decision of this one, is Urgenda Foundation v. The State of The Netherlands, since it was framed as a tort case as the current Italian one. In this landmark case, it was decided that the State acted unlawfully because it only pursued the reduction targets that were imposed upon the Netherlands by EU-law. The State was found guilty because it did not fulfil the necessary standard of due care towards its citizens. Such standard was established considering all possible legal sources that are relevant when determining what can be expected from a national government in the fight against climate change. Taking into account all these sources, also with international nature, it was stated that the State had a really serious duty of care and that it had not met this high standard. The “Urgenda” case clearly solved the problem of jurisdiction in favour of the judiciary, and it can be interesting to understand the reasoning behind it. The court argued that also judges have a form of democratic legitimacy, since their authority comes from a democratically established legislation. Furthermore, the task that has been assigned to them is to solve legal disputes, even if they are being asked legal protection from government authorities. Hence, the case was framed as a request that the citizens made to be protected against the negligence of the State. As a result, the court only set a new and more appropriate minimum reduction target, without imposing the measures that need to be taken to achieve it (Verschuuren, 2021).

Anyway, both of these cases were against the State and the plaintiffs were trying to sanction the insufficiency of the measures they were implementing to combat climate change. On the other hand, the current Italian case is against a private company, even if it is controlled by the State, and the plaintiffs are trying to sanction its current emissions and the ones of the past years. Therefore, a more similar case which must be considered when deciding this one is Milieudefensie et al. v. Royal Dutch Shell plc. In this lawsuit the plaintiffs extended the argument based on the duty of care used in the “Urgenda” case to a private company. They argued that given the Paris Agreement’s goals and the scientific evidence regarding the dangers of climate change, Shell has a duty of care to take action to reduce its greenhouse gas emissions. Even if the court of appeal overturned the first instance sentence, deciding that Shell cannot be obliged to reduce its total emissions by any specific rate by 2035, the court still decided on the matter. The decision was not overturned because of a lack of jurisdiction of the judges (Milieudefensie et al. v. Royal Dutch Shell plc., s.d.).

This case is also relevant because one of the reasons that can be given to argue in favour of the lack of jurisdiction of judges, is the fact that otherwise they would have to decide arbitrarily. Indeed, clearly there is not a national legislation on the matter, or else the problem on the jurisdiction would not arise. But in Milieudefensie et al. v. Royal Dutch Shell plc the Paris Agreement was used to establish what was the duty of care of Shell and, in the current Italian case, the plaintiffs are trying to use a similar argument. They argue that the company is not complying with the objectives imposed by the Paris Agreement and therefore is in breach of Articles 2 and 8 of the ECHR, 2 and 7 of the Nice Charter and articles 2043 and 2059 of the Italian civil code.

Regardless, the Italian Ministry of Economy and Finance held that the Paris Agreement cannot be invoked against Eni s.p.a. because, in their understanding, the Italian law that ratified it, needed another law to define what actual methods must be used to implement it. Therefore, the legislator has to decide how to achieve the results imposed by the Paris Agreement. It is only binding in its outcome, hence, without a prior national decision on the means to do so, the judges do not have a parameter to use and cannot decide on these matters. However, the plaintiffs argued that Article 2 of the ratifying law gives automatically effect to every rule needed to ensure its application. Therefore, the understanding of the plaintiffs is that they are not asking for new rules against climate change to be made by the judge. They think that these rules already exist and have effect in Italy because of the order of execution of the Paris Agreement (RICORSO PER REGOLAMENTO PREVENTIVO DI GIURISDIZIONE , 2023).

Bibliography

KlimaSeniorinnen v Switzerland (ECtHR). (n.d.). Retrieved from Climate Change Litigation Databases: https://climatecasechart.com/non-us-case/union-of-swiss-senior-women-for-climate-protection-v-swiss-federal-council-and-others/

Milieudefensie et al. v. Royal Dutch Shell plc. (n.d.). Retrieved from Climate Change Litigation Databases: https://climatecasechart.com/non-us-case/milieudefensie-et-al-v-royal-dutch-shell-plc/

RICORSO PER REGOLAMENTO PREVENTIVO DI GIURISDIZIONE , R.G. 26468/2023 del Tribunale di Roma (SUPREMA CORTE DI CASSAZIONE May 5, 2023).

Verschuuren, J. (2021). Climate Change and the Individual in the Netherlands. In M. M. Francesco Sindico, Comparative Climate Change Litigation: Beyong the Usual Suspects. Springer Nature Switzerland.