Select court practices

An expansive definition of R2HE refers to the broad and inclusive nature or interpretation of a particular concept, document, principle or legal provision related to R2HE. Legal definitions of the complex R2HE and associated concepts often lack specificity as applied to real-world circumstances, leading many courts to ‘fill in the gaps’ by situating the right within wider contextual frameworks of law, policy and science. As the triple planetary crisis of climate change, biodiversity loss and pollution intensifies, courts are increasingly reading the scope and content of R2HE broadly to address a growing variety and number of environmental harms. By providing inclusive and robust definitions of guarantees associated with the right – for example, by confirming R2HE ensures a safe climate, protects biodiversity and/or entails a duty to regulate – courts can help to ensure and further the right’s protections and utility.

Standing refers to the capacity of a given party to have their claims heard in court. Imposing a flexible standing requirement can make it easier for an individual to bring a lawsuit by relaxing the criteria determining who has the legal right to sue. In many jurisdictions, standing – which often requires a showing of remediable and “individualized harm” linked to defendants’ actions – has posed a barrier to the adjudication of R2HE and environmental damage claims. This difficulty can be attributed in part to the complex and diffuse nature of many environmental phenomena, which makes establishing individualized injury and a causal link difficult. Some international and regional treaties incorporating R2HE emphasize that courts should adopt accommodating standing requirements in environmental defense cases. Many courts across the world have done just that, promoting access to justice by applying flexible standing requirements where parties seek to defend R2HE or environment.

Courts have employed various strategies, mechanisms and approaches to establish fundamental environmental safeguards, minimum standards and/or quality levels which are necessary to guarantee R2HE. These approaches aim to ensure a basic level of protection for individuals, communities and/or the environment. Further, courts have developed various methods to assess the appropriateness of government and corporate action relative to the baseline environmental standards. These methods can vary widely in form and across jurisdictions, but may take the form of a presumption in favor of the environment, the examination of long-term consequences or the application of environmental principles like that of non-regression.

Provision of remedies is the process by which courts, after finding that a legal right has been violated or harmed, offer or provide a resolution or solution to address the harm or injustice suffered by the aggrieved party. Appropriate and effective judicial remedies play a key role in ensuring that R2HE materially protects individuals and all aspects of the environment. Remedies can vary widely in number, specificity, urgency and stringency, and those variations bear closely on whether a given remedy adequately redresses the original harm. Frequent remedies include protection and restoration measures, compensation and the creation of compliance or implementation mechanisms.

Legal causation describes the requirement for plaintiffs to demonstrate that an entity’s action or inaction at least in part led to the existence of a threat, harm or consequence the plaintiff suffered or is likely to suffer (sometimes called a “causal link”). This requirement has often hampered the adjudication and judicial protection of environmental rights. To mitigate this obstacle, some courts have found ways to make proving causation easier – for instance, by interpreting requirements to provide flexibility. This has proven particularly important where a problem’s very nature, like climate change’s role as a threat multiplier, makes demonstrating a precise “causal link” difficult or impossible.

Shifting the presumption implies altering the standard or default position typically held by one party to demonstrate that their actions or measures are adequate, satisfactory or sufficient. Commonly, the party bringing the lawsuit bears the initial responsibility of pointing out inadequacies or defects in the defendant’s actions. This can impede litigation because environmental petitioners are often at a resource and evidentiary disadvantage relative to defendants. Some courts have shifted this responsibility and placed it upon alleged environmental wrongdoers to disprove or challenge the allegations at hand. By doing so, courts can level the playing field and implicitly reinforce that protection of the environment is a duty, not an option.