Is There a Rights Turn in Biodiversity Litigation? Lessons from Climate and Environmental Advocacy

It would make rights claims a more prominent way to challenge the destruction of species and ecosystems. Boyd and Rodríguez-Garavito focus on lawsuits that connect biodiversity loss to human rights or the rights of nature. They distinguish those cases from litigation brought solely under conservation statutes. In 2021, they saw promising examples but stressed that the cases and their legal strategies had yet to be studied systematically.

The speakers identify several routes: the right to a healthy environment; rights such as life, health, and food that can be harmed when ecosystems deteriorate; Indigenous peoples’ rights to their lands and territories; and rights attributed to nature itself. These approaches can overlap. Boyd’s example of the Mexican mangrove case shows a court treating nature’s intrinsic value, as well as its value to people, as relevant to the right to a healthy environment.

Deforestation can damage habitat while also contributing to climate change. Rodríguez-Garavito uses the Colombian Amazon case to show that overlap: 25 young plaintiffs challenged the government’s failure to address deforestation, and the Supreme Court ordered measures to protect the forest. The webinar suggests that litigants can draw on both climate and biodiversity evidence when the harm and the requested remedy concern the same ecosystem.

A biodiversity target is not automatically a binding legal duty. Boyd uses the former Aichi Biodiversity Targets to ask whether a government’s commitments, considered alongside an applicable right to a healthy environment, could help a court assess what action the government owes. He presents this as a possible litigation strategy, drawing a comparison with climate cases, rather than as an established rule. 

Rodríguez-Garavito observes that rights based climate cases have largely targeted states, even though companies contribute to environmental harm. He proposes examining the corporations and intermediaries in commodity chains linked to biodiversity loss, such as beef production associated with deforestation. Both speakers say they had not yet identified a rights based biodiversity case against a corporation in their early research. Their discussion raises a strategic question: where in a supply chain could a claim most effectively address the underlying harm?

Rodríguez-Garavito argues that remedies should match the scale of the harm. A court might require a plan to protect or restore an ecosystem, then retain a role in monitoring implementation through progress reports and public hearings. Those hearings could also allow affected communities, civil society groups, and scientists to assess what has happened on the ground. The speakers caution that a favorable ruling has limited value if its orders are not carried out.

Boyd notes that Indigenous peoples’ legal efforts to protect their territories may also protect biodiversity, even when they do not describe their cases in those terms. He warns, however, that protected areas have sometimes been created by displacing Indigenous peoples and local communities. A rights based approach must account for their land and territorial rights and their participation in decisions about conservation.

Litigators and advocates can use the discussion to identify possible rights claims, defendants, evidence, and remedies in biodiversity cases. Indigenous and community advocates may find the discussion of territorial rights and the risks of exclusionary conservation especially useful. Researchers and students can use the examples from Mexico, Colombia, and Costa Rica to investigate where biodiversity and human rights arguments meet—and consult the speakers’ later study for a broader account of the cases.