This commentary is the second of a three-part series.
In the wake of Hurricane Beryl, this three-part commentary explores three legal responses to climate change as the Caribbean faces a grim reality: Hurricanes are arriving earlier, growing stronger and occurring more frequently.
Part one, which was published last week, focused on climate finance. This week’s instalment focuses on climate litigation. And next week, part three will address the “ESG” concept, which uses environmental, social and governance criteria to evaluate corporate sustainability.
Climate litigation
As disillusionment with the multilateral climate process grows, individuals and organisations in the Caribbean are increasingly seeking legal avenues to address climate-related grievances. Advances in attribution science and mounting discontent are expected to lead to claims founded on constitutional rights, such as the right to life and a clean environment.
The case of Thomas and De Freitas v. Guyana is a significant development in climate change litigation.
In 2021, two Guyanese citizens filed the first constitutional climate case in the Caribbean, challenging fossil fuel production on the grounds that it exacerbates global warming and threatens human rights. Before Guyana’s Constitutional Court, the claimants argued that the government’s approval of a massive ExxonMobil-led oil and gas buildout off the country’s coast violates its legal duty to protect the rights to a healthy environment, sustainable development, and the rights of future generations.
Caribbean lawyers should anticipate and prepare for more cases of this nature. The Thomas and De Freitas case could have a far-reaching impact on the Caribbean region, setting a precedent for future climate lawsuits and influencing government policy and corporate behaviour.
Standing
Furthermore, there has been a related advancement in the understanding of locus standi, a Latin term for the right to bring a case before a court — also sometimes called “standing.”
A recent ruling by the Privy Council in the case of John Mussington and another v. Development Control Authority in Antigua and Barbuda has provided clarity on standing in judicial review cases concerning environmental issues. The Privy Council emphasised that individuals who demonstrate genuine interest and possess some knowledge of environmental matters are entitled to challenge decisions.
Notably, the justices affirmed that this expansive approach is consistent with Antigua and Barbuda’s international commitments under the Escazú Agreement. The Escazú Agreement — a significant regional accord adopted on March 4, 2018, within the United Nations Economic Commission for Latin America and the Caribbean — aims to ensure access to environmental information, public participation in decision-making, and access to justice in environmental matters. Antigua and Barbuda, Belize, Grenada, Guyana, St. Vincent and the Grenadines, St. Kitts and Nevis and St. Lucia are the Commonwealth Caribbean jurisdictions which have ratified this agreement.
The third and final part of this commentary, to be published next week, will focus on ESG and corporate sustainability. Ms. John is a Grenada-based attorney with a master’s degree in environmental law and policy from University College London, which she pursued through a Chevening Scholarship.
