The current state of climate litigation

Climate litigation has become increasingly significant in recent years. There has been a growing number of lawsuits brought by citizens against a widening number of countries asking the courts to order their governments to adopt policies to meet climate goals or to compensate for damages caused by the failure to adopt sufficient measures in this regard. According to the latest report released by the United Nations, from 2017 to 2022, the total number of climate change cases has more than doubled, rising from 884 to 2,184.

Some of these cases have also been successful for the plaintiffs, resulting in rulings against governments that recognised the central importance of effectively tackling climate warming and accordingly sentenced the defendant governments. Sometimes, the verdict has resulted in the creation of a climate change ad hoc commission (composed of members of associations, technical experts, and members of the government) to monitor the progress of environmental legislation (see Asghar Leghari vs. Federation of Pakistan, Lahore High Court, Pakistan, 4 September 2015). In other cases, courts have gone so far as to order a government to reach a specific target to reduce national carbon dioxide emissions within a certain timeframe (see State of the Netherlands v. Urgenda Foundation, Supreme Court of the Netherlands, 20 December 2019). Over time, courts have increasingly recognized the strong connection between this type of litigation and the protection of human rights, also intended as a mean to enhance legal safeguards granted to those vulnerable groups withing global society inhabiting areas more acutely impacted by the downsides of climate change.

Explore our ESG Litigation Guide for in-depth analyses of chosen European and international ESG Litigation cases.

The “Last Judgment” case

Against this background, Italy also recently witnessed the publication of its first ruling in a climate litigation case against the State, defining a civil lawsuit initiated in 2021 by environmental associations against the Italian government, and evocatively referred to as "the Last Judgement” case.

The plaintiffs claimed that the Italian government had failed to implement adequate measures to achieve climate stability through a reduction in CO2 emissions and asked that the government be declared responsible for violating citizens’ constitutionally protected rights to health and to a healthy environment, as enshrined in the European Convention on Human Rights as well as in the Charter of Fundamental Rights of the EU. Based on these grounds, plaintiffs requested the Court to order the Italian government to implement appropriate measures to reach climate stability, to inter alia reduce greenhouse gas emissions by 92% by 2030 compared to 1990 levels.

In its defence, the government denied any responsibility, essentially claiming that a causal link between their alleged omissions and carbon dioxide emission levels cannot be established, especially considering that such emission was the result of the actions of a multitude of both public and private actors. Moreover, the government held that the damages claimed by the plaintiffs were far too generically described for any claim to be upheld.

The dismissal ruling

After an extensive discussion, on 6 March 2024 the civil Court of Rome published the first instance decision on the case, which is primarily centered on compelling remarks regarding the compatibility of the model of climate litigation civil lawsuit against the State with one of the cornerstones of the liberal state structure, notably the principle of the separation of powers.

In short, the Court stated that it lacked jurisdiction on the case, leading to the dismissal of the claims, as it deemed itself unable to exercise its judicial power to compel the Italian government to adopt certain acts of political direction, which is a prerogative of the executive power vested in the government. Particularly, the Court emphasized that determining the methods and timing of addressing climate change entails complex evaluations of socio-economic factors and cost-benefit analyses across diverse sectors of society, which fall within the power of political bodies and, as such, could not be subject to sanctions in the relevant judgment. Finally, the Court added that the specific plaintiffs’ claim contesting the adequacy of the integrated National Energy and Climate Plan, formulated by the Italian State pursuant to EU Regulation no. 2018/1999 on the Governance of the Energy Union and Climate Action, falls under the jurisdiction of the administrative court, not the civil Court involved in the case.

What’s next?

The saga is far from being concluded: at the time of writing, the first instance decision has not (yet) become res iudicata, and the plaintiffs have already announced their intention to challenge the decision.

Looking ahead, if on the one side the Court of Rome has taken a very clear position on the inadmissibility of climate litigation against the government, at the same time it has also acknowledged the complex and multifaceted nature of the underlying issues and the seriousness of the climate change global emergency, thus showing some evident attention to the plaintiffs' claims. Whether this will be sufficient to pave the way to any broader trend in climate litigation in Italy remains to be seen. In any event, for stakeholders operating in the Italian markets most impacted by the imperative of addressing climate it will be certainly worthwhile to closely monitor the progress of this and other ESG cases currently underway in Italy.

Authored by Alessandro Borrello and Pietro Orlandi.