Solving Standing is Simply the Start: Climate Litigation Lessons Learned from the Evolution of Rights of Nature

Authors

Madeleine L. Kim

Abstract

The global climate crisis continues to worsen. The Sixth Synthesis Report issued by the Intergovernmental Panel on Climate Change in 2023 unequivocally stated that “[w]idespread and rapid changes in the atmosphere, ocean, cryosphere and biosphere have occurred” and that “[h]uman-caused climate change is already affecting many weather and climate extremes in every region across the globe.” This report expressly states that climate change has “led to widespread adverse impacts and related losses and damages to nature and people” and that the “projected adverse impacts and related losses and damages from climate change escalate with every increment of global warming." However, despite these clear and increasingly dire warnings from climate experts and the international community, the inaction by national governments and political figures persists. In particular, the widening gulf between domestic public opinion and the policy decisions made by corporations and politicians highlights the difficulties inherent in achieving meaningful climate solutions, especially as the United States emerges from yet another highly divisive presidential election cycle and enters a new administration. This mismatch extends beyond the United States. The fractious and drawn-out nature of the negotiations to establish a Loss and Damage Fund under the auspices of the United Nations and the lackluster initial funding commitments made at the Climate Change Conference (“COP28”) in Dubai in the fall of 2023 underscore that this is a global failure to act with the requisite urgency. Although establishing the Fund is an important step, observers point out that the amounts pledged fall far short of what is necessary, as they are “barely enough to get the fund running” and are dwarfed by the approximately $7 trillion in subsidies that were paid to fossil fuel industries globally in 2022. Frustrations with addressing this policy mismatch via conventional political avenues have given rise to a host of climate change lawsuits. However, the threshold barrier to climate change litigation is who has standing to sue in the interests of nature or a healthy environment. Various solutions have emerged globally, from the personified right of nature in legislation or constitutions, to Indigenous tribal stewardship, to a human right to a healthy environment; most climate change litigation globally hinges on either the human right to a healthy environment or a personified right of nature. Since 2008, when Ecuador included language recognizing the rights of nature in its national constitution, these lawsuits have increasingly incorporated the personified rights of nature. The extant rights of nature can be divided into three broad categories: constitutional, treaty and negotiation-based, and judicial. Despite an increase in interest and a UN General Assembly Resolution proclaiming the right to a healthy environment as a human right, the outcomes of lawsuits based on these initiatives have been mixed, as all of these aforementioned solutions to the standing problem create their own pitfalls later in litigation. This Note seeks to apply the lessons learned from two versions of the personified right of nature and a recent victory in domestic litigation in the United States based on the human right to a clean environment to a recent local case—Manoomin v. Minnesota Department of Natural Resources—as a method of distilling best practices for climate litigation going forward. Part I explores the variety of conceptions of personified rights of nature around the world, focusing on (i) Ecuador, where the constitutional personified right of nature has been defined too broadly to be effective, and (ii) New Zealand, where the government has created Māori management boards to act in the name of, and on behalf of, natural entities. Part II discusses the recent success in Held v. Montana based on a state constitutional human right to a healthy environment. Part III examines the failure of Manoomin v. Minnesota Department of Natural Resources based on a treaty-based personified right of nature and applies the lessons learned in Parts I and II. This Note concludes that the differing rights structures relied upon have impacted the legal avenues available in litigation and have prevented the actualization of beneficial outcomes for the environment due to the further procedural hurdles created by creative solutions to standing. Ultimately, this Note advocates for greater exploration of state constitutional reform as a combined strategy for future domestic litigation after applying these lessons to Manoomin v. Minnesota Department of Natural Resources.

Volume

34

Issue

1

Recommended Citation

Kim, Madeleine L. (2025) "Solving Standing is Simply the Start: Climate Litigation Lessons Learned from the Evolution of Rights of Nature," Minnesota Journal of International Law: Vol. 34: Iss. 1, Article 6.
Available at: https://scholarship.law.umn.edu/minn-jrnl-intl-law/vol34/iss1/6