The Escazú Agreement contribution to environmental justice in Latin America: An exploratory empirical inquiry through the lens of climate change litigation

Abstract

In many jurisdictions, procedural rules and arrangements that govern litigation are not necessarily well-suited to the protection of collective interests, such as the environment. This idea has been flagged for a while by scholars and practitioners from different jurisdictions and was part of the reason for promoting specific regulations on access to justice in environmental matters. The protection of the climate adds a new layer of complexity, as it is increasingly clear that, even in jurisdictions where a strong rule of law is presumed to exist, barriers to access to justice remain. We depart from the idea of a mismatch between procedural rules and climate protection through courts to explore the interface between two convergent phenomena in the Latin American region: the Escazú Agreement’s implementation and climate litigation. Based on data gathered through interviews with 11 legal practitioners involved in climate cases in Argentina, Brazil, Colombia, Chile, Ecuador and Mexico, this article identifies procedural barriers that plaintiffs face in the courtroom and discusses if and how the implementation of the Escazú Agreement could overcome them for the improvement of access to justice in climate matters in the region. In doing that, it highlights relevant experiences in Latin America that could be of interest to those seeking to overcome procedural hurdles in other regions.