On November 22, 2024, Johns Hopkins University SAIS Europe and the Department of Legal Studies (DSG) of the University of Bologna jointly organized a workshop titled "The Green Gavel: Climate Litigation". The workshop brought together practitioners, academics of various disciplines, and students to address the role of litigation in defending the climate – in Italy and across the world. We are pleased to interview Antonio Tricarico, Fundraising and Programs Manager at ReCommon, who participated in the event last November. ReCommon is an NGO that fights against abuse of human and environmental rights. In this interview, we will focus specifically on the topic of climate change litigation in Italy.

Interviewer and Interviewee Bios:

Grazia Eleonora Vita

Grazia Eleonora Vita is a PhD candidate at the Department of Legal Studies of the University of Bologna (XXXVIII cycle) and holds an LLM in International Dispute Resolution from King's College London. Her current research focuses on business and human rights and private international law aspects of transnational environmental disputes. Teaching assistant to the International Environmental Law course held by Professor Attila Tanzi (since A.Y. 2023/2024). She has been a visiting researcher at the Grotius Centre for International Legal Studies at Leiden Law School and at the Geneva University. She was the former Editor-in-Chief of the University of Bologna Law Review.

Alessia Preti

Alessia Preti is a PhD candidate at the Department of Legal Studies of the University of Bologna (XXXIX cycle). Her PhD research focuses on Human Rights Monitoring mechanisms, with special regard to their role in elaborating the relationship between human rights and the environment. Teaching assistant to the International Law course held by Professor Attila Tanzi (A.Y. 2023/2024). She has been conducting research since June 2024 at the Ministry of Foreign Affairs and International Cooperation of Italy, contributing to the preparation of Italy's statements before the Sixth Committee of the UN General Assembly. Her fields of interest are international human rights law, international environmental law and international criminal law.

Antonio Tricarico

Antonio Tricarico graduated at Rome La Sapienza University as energy engineer and carried out his diploma thesis at the Italian National Environmental Agency on modeling for accounting greenhouse gas emissions of the entire Italian energy system. After a long experience as organizer in Greenpeace and Amnesty International Italy in the '90s, since 2001 he has been coordinating the CRBM project – then spun off into the association ReCommon in 2012. Antonio has gained year by year a widely recognized leadership within Italian and European civil society on energy, finance and infrastructure related issues and often writes on these for several Italian media. He testified in several hearings at the Italian and European Parliaments, and contributed to several long publications on sustainable development related issues.

The Interview

Vita: What are the main challenges of climate litigation in Italy (both in general and more specifically from the perspective of an NGO)?

Tricarico: So far, the Italian experience has been relatively limited. We have had two climate lawsuits in the strict sense, both in civil court, and both have encountered the absolute lack of jurisdiction.

Clearly, this is a major obstacle, which is why, within the framework of La Giusta Causa, we have appealed to the Court of Cassation to issue a definitive ruling on the matter. From a legal standpoint, this remains the main hurdle to date (as also highlighted in Giudizio Universale).

A second key issue is standing, which is the right to bring a claim in court. It is important to remember that before Italian civil courts only the Ministry of the Environment and Energy Security (MASE) has the authority to bring a claim and seek damages for environmental harm. Inevitably, a climate lawsuit brought by organizations, associations, or civil society actors revolves around consequential damage (danno conseguente), and in order to proceed, they must establish a direct legal interest. The strategy is to build upon the case law developed in criminal proceedings regarding civil parties (parti civili) to obtain judicial recognition of standing. Indeed, civil wrongdoing related to consequential damage and environmental harm can also involve a criminal offense (such as environmental disaster) or harm due to metus (fear of future harm). Therefore, it is reasonable to refer to that body of case law.

La Giusta Causa is an example of strategic litigation, which aims to define and have the issue of standing legally recognized.

Then there is the issue of jurisdiction – there is an open debate on whether the administrative route might be more appropriate than the civil one, especially in cases against States. This is not necessarily an insurmountable obstacle. In La Giusta Causa, since it is against a corporation, civil jurisdiction is the most appropriate route.

Another aspect is passive legitimacy (legittimazione passiva). ENI has raised an objection concerning its status as a multinational (with various subsidiaries and emissions spread across different locations), but this is an argument that can be overcome. The situation is different when dealing with a public entity or a privately owned company with public participation. In La Giusta Causa, we have relied on the concept of dominant influence: the State is a key shareholder and exercises a certain level of influence – something even acknowledged by the Court of Auditors (Corte dei Conti). This establishes a closer link to obligations that may arise from the Paris Agreement, for instance. There is a shared responsibility between the company and the State, which is not just a matter of failing to exercise oversight but also of direct responsibility, as the State is fully aware of the company's actions and benefits from its dividends.

To sum up, the key challenges remain justiciability and standing – establishing a strong precedent is crucial. Perhaps now the time is ripe, particularly for the issue of standing.

Preti: As you mentioned, Giudizio Universale was dismissed with a declaration of absolute lack of jurisdiction by the Civil Tribunal of Rome. To prevent the same from happening again, in La Giusta Causa you have asked the Italian Supreme Court to preventively declare whether the tribunal has jurisdiction. What do you expect from the Supreme Court?

Tricarico: There are three possible scenarios.

The first is that the Court declares the request inadmissible, without entering in the merits of the issue of the justiciability of climate change claim. This would be an "elegant way" for the Court to avoid taking a position in case judges are divided on the question. However, the recent decision of the European Court of Human Rights (ECtHR) in KlimaSenniorinnen carries significant weight, as it clearly establishes the accessibility of strategic climate change claims before domestic courts and tribunals.

If the request is examined on its merits, there are two possible outcomes: either the Court conforms to the ECtHR's ruling, or it deems the appeal without merits. The latter scenario would be highly detrimental to any future climate litigation in Italy, as such a precedent given by the highest Court of the State in its Joint Sessions (Sezioni Unite) would become definitive, leading to negative consequences for years – at least until the Court reconsiders its position.

The question of justiciability (and separation of powers), especially at a time of tension between the government and the judiciary, is a highly sensitive topic that could influence the Court's decision in one direction or another. In any case, the ECtHR's ruling is quite clear, and I think it is difficult to ignore.

Moreover, in other European jurisdictions such as Germany, The Netherlands, France, and Belgium strategic climate change cases are addressed on their merits, and their justiciability is no longer questioned. I would be very surprised if the Court issued a firm and negative ruling on the merits. The hope is that there will be the courage to take this step forward. Also, it is important to remember that, as concerns the appeal lodged in the Supreme Court, the objective is to have cases deemed admissible, not necessarily to win on the merits.

Vita: Can you tell us about the case against SACE? What do you see as the positive and negative aspects of this case?

[Note by the authors: This case concerns SACE, the Italian insurance-financial group directly controlled by the Ministry of Economy and Finance, which between 2016 and 2022 issued guarantees to cover loans to ENI and Saipem (Italian multinationals) for the "Coral South FLNG" and "Mozambique LNG" projects respectively. Mozambique is a country rich in liquefied natural gas, and these and other projects, have been at the center of serious allegations of human rights abuses, including forced displacement and harm to local communities, including environmental damage. For these reasons, ReCommon requested access to the review and due diligence conducted by SACE on certain specific operations, particularly in relation to environmental issues.]

Tricarico: It originally started as a simple case of access to environmental information. It carries significant importance, as it highlights the legal specificities of the public sector and concerns the internal due diligence process of a public financial institution regarding the environmental and climate-related impacts of an operation. The key issue was whether information on financial support and financial risk related to environmental matters could be considered environmental information. Before this case, that was unclear.

The Regional Administrative Court of Lazio (TAR) and the Council of State established a precedent: access to financial due diligence related to environmental matters is now recognized as environmental information. Since SACE is a public entity, this means such information must be made accessible. This is crucial because there are many public financial institutions in Italy (such as Cassa Depositi e Prestiti), and it goes to the heart of how environmental and climate risks are assessed – offering a different approach compared to other existing obligations for public financial institutions.

In principle, a legal precedent has been set. However, in enforcing the ruling, SACE has resisted compliance. ReCommon had to request that the TAR appoint a special commissioner (Commissario prefettizio) to oversee implementation. The commissioner took office late and then requested translations of certain documents from English – although they should already have been available in Italian – causing further delays of three months. At that point, SACE devised a new defense strategy based on alleged confidentiality clauses – despite these already being dismissed by both the TAR and the Council of State. The commissioner effectively reopened the case by considering SACE's new objections.

More than a year has passed, and the requested documents have still not been provided, despite repeated reminders to both the TAR and the commissioner.

This is a highly unusual situation. It has opened the door for filing a complaint with the Aarhus Convention Secretariat over Italy's failure to enforce the ruling. There is also the possibility of lodging a complaint with the European Commission to initiate an infringement procedure for violation of the Directive on public access to environmental information.

Despite these obstacles, the precedent remains important and useful, paving the way for future cases.

Preti: According to your experience, how effective is it to engage and collaborate with other NGOs (nationally and internationally)?

Tricarico: It is highly effective and extremely useful. In La Giusta Causa we collaborated with Greenpeace Italy, which is part of Greenpeace International, meaning that we worked together in various exchanges and the coordination between legal teams was very enriching. For instance, GP International shared all the relevant international jurisprudence on climate change litigation with us, which we used to our advantage in our case.

ReCommon was also in contact with Milieudefensie (which supported the Urgenda case and also initiated the case against Shell in the Netherlands) and we engaged with their legal teams too. Now, following the setback at the appeal stage in their case against Shell, there has been extensive reflection – one we also participated in – on whether to proceed to the Supreme Court.

[Note by the authors: On 11 February 2025 Milieudefensie announced that it decided to appeal to the Dutch Supreme Court in the climate case against Shell.]

In any case, the judgment of the Court of Appeal in The Hague puts forward crucial elements in terms of corporate responsibility in climate change mitigation. The case was "lost" just with regards to one last point of the decision, on the parameters to be used for determining mitigation obligations. If we will be able to enter in the merits in La Giusta Causa, all the work behind the Shell case will be extremely useful for our purposes.

We also engaged with German groups like Germanwatch (claimant in RWE case) and maintained contact with various French groups that have pursued different types of litigation against Total. These exchanges have become regular, and over time, networks have formed – for instance, the Climate Litigation Network regularly organizes seminars to refine litigation strategies.

Then, there's an entire world of NGOs focused on climate litigation in the UK and the US, with whom we do exchange insights – though, of course, within the limits set by the differences between civil law and common law but there are still recurrent issues.

I strongly believe in the interaction between legal practitioners and civil society activists. It requires significant effort, both in terms of semantics and operational approaches, but when it works, it's highly effective.

Regarding the Italian case, we also tried to engage with the constituency behind Giudizio Universale and expand support for La Giusta Causa as much as possible. Honestly, it hasn't been easy – whenever ENI is involved, there's always a kind of media blackout in Italy. Climate litigation cases in Italy receive relatively little attention in comparison to other countries. Paradoxically, there was more interest in the SLAPP (Strategic Litigation Against Public Participation) by ENI against ReCommon and Greenpeace. This is a lawsuit for alleged defamation based on how we communicated about La Giusta Causa. That might have drawn more attention from other constituencies.

Overall, I believe this lack of visibility is largely due to the fact that Italy is somewhat behind in this kind of legal engagement, and then, of course, there's the objective problem of corporate and political interference on the media.

Preti: As an NGO engaging in strategic litigation, do you prefer having your own internal legal resources, or do you collaborate with law firms? Do you sometimes benefit from pro bono advice from major law firms?

Tricarico: As for the second part of the question, let me start by saying that in Italy, there isn't the same tradition of pro bono cases from major law firms as in the UK or the US, so the context is quite different. If there is an opportunity to obtain pro bono legal advice from big firms, I'd say it's not something to pass up. However, when litigating against the oil and gas sector, it's also very likely that major law firms would face conflicts of interest in providing us with legal advice. As for the first part of the question, in my experience, NGOs rarely have an in-house legal advisor and instead prefer to collaborate with external lawyers. ReCommon, for instance, often works with the same trusted legal professionals.

Vita: Do you consider litigation the most effective form of activism, or do you think other approaches might be more promising?

Tricarico: Litigation is obviously not the only tool available. We have increasingly relied on it because other methods we previously used did not achieve the desired impact. We are quite active in shareholder activism – we buy shares and attend general meetings, for example. However, during COVID, this approach was significantly limited due to closed-door shareholder meetings. Nevertheless, investor engagement remains an interesting and valuable avenue.

Shareholder activism includes buying shares, engaging with investors, and running communication campaigns. Litigation, on the other hand, is useful because some cases become iconic and help build broader advocacy campaigns. This is why organizations such as Greenpeace are particularly interested in this aspect.

At this stage, litigation is particularly important. Governments are failing to deliver on their climate commitments and companies continue to resist change. In these circumstances, legal action is necessary. But it is certainly not the only tool available.

Preti: Do you believe that climate litigation (in Italy and abroad) is really a game changer?

Tricarico: Yes, I do believe it. Independently of political developments, I feel that the dynamics of the just transition are revealing a conflict between industries willing to invest in a re-planned, sustainable business and those resisting in what I would define as an "existential" manner (particularly the oil and gas sector). In this dynamic, litigation becomes a quite direct occasion of clash, especially when there is media coverage. Considering that companies which are facing climate litigation cases have also been investigated for serious crimes in the past (environmental disaster, corruption), it is striking to see the intensity with which they respond in climate cases. I think that this is because they feel threatened by the potential developments of strategic litigation, and therefore they need to react firmly and with force. It feels like we've reached a turning point: the energy transition requires a profound transformation of many businesses, and it seems increasingly clear that some companies have delayed so much that the real question now is – what will happen to them? That's why I believe the response is almost existential for these companies. In this dynamic, there is an impact, and there is a reaction. That's why litigation is effective if the goal is to push things forward with a certain force. In Italy, the clash between industrial sectors might be less visible – perhaps it's more evident abroad.

Preti: How much influence might advisory opinions on States' obligations in relation to climate change have on litigation against corporations? We can look at the already issued decision by International Tribunal for the Law of the Sea (ITLOS), as well as the forthcoming ones from the Inter-American Court of Human Rights (IACtHR) and the International Court of Justice (ICJ).

Tricarico: I think that these pronouncements by international courts and tribunals have strong influence on domestic cases, especially those against States. When it comes to litigation against corporations, the key question is whether climate-related obligations have a horizontal effect. In this sense, a crucial point of Urgenda was the recognition that climate change threatens or violates fundamental rights. So, independently of the Guiding Principles on Business and Human Rights, we can consider the horizontal effect of fundamental rights as an axiom of international law. In brief, everything that contributes to consolidating States' obligations in relation to fundamental human rights can help domestic litigation against corporations. And I think the international-constitutional dimension of the law will be increasingly relevant, especially in Italy.

Vita: How might the Shell case and in particular the obiter dictum from the Shell appellate ruling help you? Regarding the issue of science and expert opinions – if you proceed to the merits, how will you approach this?

[Note by the authors: "To keep the climate goals of the Paris Agreement within reach, emissions will have to be drastically reduced by 2030. The court of appeal deems it plausible that this will require not only taking measures to reduce demand for fossil fuels, but also limiting the supply of fossil fuels. The social standard of care, interpreted on the basis of Articles 2 and 8 ECHR and soft law such as the UNGP and OECD guidelines, requires producers of fossil fuels to take their responsibility in this respect. It is reasonable to expect oil and gas companies to take into account the negative consequences of a further expansion of the supply of fossil fuels for the energy transition also when investing in the production of fossil fuels. Shell's planned investments in new oil and gas fields may be at odds with this", Court of Appeal of The Hague, Shell v Milieudefensie, para. 7.61 (unofficial English translation of the judgement, emphasis added), ECLI:NL:GHDHA:2024:2099, 12 November 2024.]

Tricarico: If La Giusta Causa proceeds to the merits, we will certainly use it. In Italy, we are still dealing with the fact that climate litigation cases have not yet reached the merits stage.

From a procedural standpoint in Italy, we had already requested that the judge appoint a court-appointed technical expert (Consulenza Tecnica d'Ufficio – CTU). However, the judge has so far only focused on preliminary objections. It is crucial to establish interaction with the judge on this aspect, as they would appoint their own expert in such cases. The Dutch court could have been bolder, but of course, procedural and technical aspects – specific to Dutch civil procedure – had to be taken into account.

Finally, there is a prevailing narrative around climate neutrality, the myth of the "trilemma" – discourses that are highly political and have little legal grounding. These narratives inevitably influence judicial perception and serve as strategies to delay the phasing out of fossil fuels. It will also be interesting to see how the RWE case develops. Of course, drawing comparisons between cases is often difficult due to procedural differences. However, in general, CTUs (Consulenze Tecniche d'Ufficio) remain a crucial element.

Vita and Preti: We now have to wait for the decision of the Court of Cassation, which is due in the next few weeks. La Giusta Causa will determine the future of climate litigation in Italy for a long time to come. We sincerely hope that the judges will decide to be on the right side of history and open up new possibilities for future cases.

The opinions expressed are those of the interviewee and not necessarily of CCSDD