3.1 Introduction
Efforts to drive action on climate change are increasingly turning to courts. While litigation involving climate change is nothing new, an increasing number of cases are being filed and there has been a recent surge of cases that have long-term strategic ambitions. Interestingly, an increasing number of such cases use the norms and frames of human rights, as shown by César Rodríguez-Garavito in his chapter in this volume (Chapter 1). The use of litigation to advance strategic goals on climate change mirrors a long history of human rights practitioners using litigation to achieve ambitious policy change. While climate litigators recognize the relevance of substantive human rights arguments to climate change, they have paid limited attention to how the human rights community has used litigation.
This is a missed opportunity. The human rights community has spent decades debating the role of strategic litigation in effecting lasting change, reflecting on the role of strategic litigation and its relationship with other forms of advocacy and activism, and identifying how to minimize the risks of litigation and maximize its impact. Climate litigators have the opportunity to use and build upon human rights advocates’ hard-won lessons on how to use litigation most effectively and strategically when facing problems with deep social, economic, and political roots.
In line with the purposes of this collective volume, this chapter outlines those links. It identifies the emergence of the next generation of climate litigation involving cases with strategic ambitions; it outlines the debates on strategic litigation within the human rights community; and it considers how the lessons from those debates apply to climate litigation. Drawing on the lessons from other fields that have significant experience in strategic litigation does not imply that there is a single correct approach or answer that all should follow. Nor does identifying the costs and risks of litigation mean that climate activists should stop litigating. To the contrary, there is significant potential for strategic litigation to support climate action. And a careful look shows that some climate litigators have already adopted and extended best practices in areas where many human rights litigators lag. The chapter does, however, serve as a call to ensure that each decision on whether and how to litigate considers all of the relevant factors and that climate litigators consistently maximize the impact of limited time and resources by conducting litigation as effectively, efficiently, and strategically as possible.
3.2 The Evolution of Climate Litigation
The scale of global climate change litigation has been well-documented,Footnote 1 including recent tallies of almost 2,000 climate change cases worldwide.Footnote 2 However, these headline numbers can obscure the diversity of legal actions that are included under the climate litigation banner.Footnote 3 These claims:
involve a broad range of parties, with cases being brought by individuals, NGOs, governments (typically sub-national), and corporations and primarily against corporations and governments, (with a few cases against NGOs and individuals);Footnote 4
rely on a diverse range of legal principles, including tort, constitutional, administrative, environmental, human rights, corporations, securities, and consumer protection laws;
challenge a wide range of acts, policies, and practices, including: perceived failures by governments and corporations to sufficiently mitigate greenhouse gas emissions; failure to adapt to climate change; failure to accurately manage, report, or disclose the risks associated with climate change; ‘anti-regulatory’ challenges against policies intended to facilitate the transition towards clean energy; and actions against those protesting climate change.
This diversity is not surprising. Climate change – its causes and effects – necessarily implicate a wide range of actors and social, political, and economic relationships. The range of climate claims also reflects the growing diversity and polycentricity of climate change governance and action.Footnote 5
That said, certain trends in climate litigation can be identified. While many early efforts focused on challenging a particular fossil fuel–intensive project or harmful regulation, there has been a recent growth in ‘strategic cases’, which aim to produce ambitious and systemic outcomes. The profile of these cases has grown in the wake of the Urgenda Foundation’s successful claim against the Dutch government for its failure to sufficiently reduce emissions and the endorsement of this landmark judgment by appellate courts;Footnote 6 a successful constitutional claim by Colombian youth plaintiffs for the protection of the Amazon;Footnote 7 the Juliana case brought on behalf of twenty-one young people in the United States;Footnote 8 Ashgar Leghari’s case against the Pakistani government;Footnote 9 and, while not strictly a judicial decision, the findings of the Philippines’ Human Rights Commissions following its investigation into the legal responsibility of forty-seven so-called ‘carbon majors’ for the human rights impacts of climate change.Footnote 10 Other potentially ‘strategic’ cases include those directly targeted at corporations responsible for their role in the climate crisis, like the suite of litigation against the so-called carbon major fossil fuel companies seeking contributions for the costs imposed by climate changeFootnote 11 and the litigation that led the Hague District Court to order that Shell reduce its global carbon emissions by 45% by 2030.Footnote 12
These cases, sometimes hailed as ‘new wave’ or ‘next generation’ cases, currently comprise a small portion of climate litigation.Footnote 13 However, the momentum behind these lawsuits can be expected to grow. On one hand, our understanding of the threat, and of the urgency of action, is growing. More people are experiencing the effects of climate change in their daily lives, whether through increasingly intense and frequent wildfires, tropical storms, heatwaves, droughts, flooding, or impacts on fisheries and agriculture. There is growing awareness that we are increasingly at risk of triggering tipping points that cause abrupt and irreversible changes in the climate system and critical ecosystems, including ‘runaway’ climate change. Key scientific reports have become part of the mainstream understanding of the implications of further warming.Footnote 14 And research is increasingly able to quantify not only past contributions to climate change but also the contribution of climate change to specific extreme weather events and associated damage.Footnote 15
This public awareness that climate change may cause irreversible effects in our lifetime is growing just as public faith in a political response to climate change is dwindling. Reports of the ‘emissions gap’ and ‘production gap’ continue to grow.Footnote 16 The combination of historical inaction in the 1990s and 2000s and high-profile political setbacks in key jurisdictions in the latter part of the 2010s (such as the elections in Brazil, Australia, and the United States) has led many to question the willingness of governments to adequately address climate change in practice. The repeated failure of the UNFCCC Conference of Parties to agree on rules required to implement the Paris Agreement has also contributed to growing disillusionment with the multilateral processes that have been entrusted to address climate change.
The resulting dissonance between the urgency that people feel (and that scientists urge) for climate action and the declining confidence in political and corporate decision-making will increasingly push legal action (and other forms of popular mobilization) to the forefront of our climate response.
3.3 Links between Climate Litigation, Human Rights, and Strategic Litigation
Like other climate claims, the ‘next generation’ cases have been anchored in a broad range of laws and legal principles. However, there has been a recent shift to consider climate change in human rights terms. Philip Alston, the UN Special Rapporteur on extreme poverty and human rights, released a report in June 2019 arguing that ‘climate change threatens the future of human rights … [and] represents an emergency without precedent and requires bold and creative thinking from the human rights community’.Footnote 17 Later that year, the UN High Commission for Human Rights Michelle Bachelet stated that ‘the world has never seen a threat to human rights of this scope’.Footnote 18
There have been moves by the human rights and climate communities to bridge this gap, notably with the three-year inquiry by the Philippines’ Human Rights Commission into how climate change is affecting the human rights of Filipinos,Footnote 19 the appointment of the first UN Special Rapporteur on the promotion and protection of human rights in the context of climate change, and multiple complaints filed with UN human rights treaty bodiesFootnote 20 and the European Court of Human Rights asserting violations from climate change.Footnote 21 Domestic climate litigators have also begun to incorporate human rights arguments into their cases,Footnote 22 with human rights featuring in key strategic climate litigation judgments from the Dutch Supreme Court and Court of Appeal, the Berlin Administrative Court, and the Colombian Supreme Court.Footnote 23 This trend is likely to continue, as claims linking climate change and human rights become more viable as a result of the increasingly rich body of jurisprudence, commentary, and high-level recognition of these connections and the corresponding obligations of state and non-state actors.Footnote 24
In parallel, there has been a growing body of literature considering the prospects and lessons of climate litigation as a tool of governance, regulatory reform, and action.Footnote 25 However, despite the increasing attention paid to the strategic issues raised by the use of litigation in climate action and the expanding role of substantive human rights claims in climate cases,Footnote 26 drawing on the lessons of how human rights advocates have used strategic litigation is not yet mainstream practice. That is not to deny the long history of strategic litigation by the environmental movement,Footnote 27 whereby activists have turned to courts as part of multi-pronged campaigns and to democratize environmental policymaking and which has also been the subject of significant scholarly attention.Footnote 28 But the breadth of common ground shared by climate and human rights activists in challenging broad policy frameworks and corporate practices has not yet been explored.
3.4 The Debates over Strategic Litigation of Human Rights
3.4.1 What Do We Mean by ‘Strategic Litigation’?
There is no single or broadly agreed definition of ‘strategic litigation’.Footnote 29 Do we categorize a case as strategic based on its goals or the way in which it is litigated? Are the goals, motivations, or methods that matter those of the lawyer or client? Must a case be seen strategically from the outset or can strategic potential be identified and acted upon later?
This is not the place to engage, let alone resolve, all of these questions. For our purposes, a case has strategic ambition where it seeks to achieve broader change beyond the direct interests of the plaintiffs in the case or the remedies sought by them – typically changes to policy, social norms, or corporate behaviour. A case is litigated strategically when it is not seen in isolation (with the judgment as the solution or an end in itself) but rather as one step in a bigger effort to achieve the ultimate goal.Footnote 30 This contrasts with the perspective of many lawyers who see their case as the whole game. According to the latter view, a judgment in their favour is a win; game over.
There are plenty of cases that have strategic ambition but are not litigated strategically.Footnote 31 A few may even have achieved strategic change. But cases that have strategic ambition are more likely to achieve their goals if the cases are viewed and litigated strategically, and if this approach is taken from the earliest stages of planning the case.Footnote 32
3.4.2 History and Debates
Strategic litigation has a long history in the human and civil rights communities. Many date its contemporary use to the NAACP Legal Defense Fund’s litigation of school segregation, including the 1954 Brown v. Board of Education ruling by the US Supreme Court.Footnote 33 But it has a longer history, arguably going back to anti-slavery litigation in the United Kingdom in the late 1700s.Footnote 34 And while it has long been prominent in the United States, recent decades have seen a much wider application. The European Court of Human Rights helped to generate a strong interest in strategic litigation in the European human rights community,Footnote 35 and the human rights courts and commissions established by the African Union and Organization of American States have spurred similar growth in those regions.Footnote 36 Strategic litigation has also become a prominent feature of human rights work in national jurisdictions with strong constitutional protections of human rights, in particular economic and social rights, in South Asia (especially India and Pakistan), sub-Saharan Africa (e.g., South Africa and Kenya), and Latin America.Footnote 37
That said, law is not the only means of achieving social change, and litigation is not the only way to use law.Footnote 38 The role of litigation in achieving social change has been contested for decades, with some dismissing courts as a ‘hollow hope’ for rights advocates as early as 1991.Footnote 39 Sometimes these critiques characterized the role of courts and litigation in realizing rights or achieving change as ‘anti-democratic, wresting powers from elected representatives and their procedures’, or ‘elitist’, as it disempowers local communities by placing control in the hands of ‘the lawyers’ and diverts scarce resources and attention from more authentic initiatives and solutions.Footnote 40 Others criticize litigation as ineffective, pointing to the poor record of implementation and the list of ‘landmark’ cases that made little change on the ground and arguing that the narrow and formalistic frame of litigation and judicial orders is inadequate to address deeply complex problems.
Fortunately, in recent decades, human rights lawyers have taken the critiques of strategic litigation as a tool for social change seriously. The resulting debates have generated a substantial and nuanced body of literature that recognizes the challenges and limitations, as well as the potential, of this tool; identifies issues that those engaged in strategic litigation should be aware of; and draws out a number of principles that are likely to enhance the effectiveness of strategic litigation (or minimize its risks).
This chapter does not pretend to distil everything the human rights community has learned about strategic litigation. Entire booksFootnote 41 and multivolume report seriesFootnote 42 have been written on that topic, and the conclusions are still being debated. Rather, it outlines a handful of examples to illustrate the relevance of the discussion taking place in the human rights community to the next generation of climate litigation.
3.5 Applying Lessons Learned to Climate Litigation
Many of the principles drawn from strategic human rights litigation can inform the way that climate litigators and other advocates approach the ‘next generation’ of climate cases. Both kinds of litigation tackle complex social, economic, and political problems. Both look to courts as a venue to equalize power imbalances and assert the interests of individuals, communities, or the broader public against powerful entrenched corporate and political forces. And both can seek to reframe our understanding of a problem, highlighting the costs inflicted by a status quo and the importance of building solidarity and a shared sense of responsibility for creating change.
However, these principles do not amount to a ‘one size fits all’ approach to using litigation to achieve social change or to maximizing its impact. Highly prescriptive approaches to litigation are of limited value: the optimal approach will vary depending on the social, political, and legal context and on the nature of the issue to be addressed; and may need to adapt as the context and the campaign evolves. But a number of key lessons or principles emerge from the debates, which may inform the use of litigation for strategic objectives.
One early lesson of strategic human rights litigation is that the context in which one is litigating – social, political, and legal – has an enormous impact on the role that litigation can and should play in a strategy for change, and on what type of litigation has the greatest potential.
The social context can include whether the litigator is addressing a problem that the public is already aware of, or whether the litigator is trying to draw public attention to a new issue. Is the society fragmented or unified? Is this an issue where the bulk of the population is suffering at the hands of an elite, or where the litigator is trying to secure the right of a minority? And what previous attempts have been made to address this issue?
The political context can include the nature of the government, whether there is any effective opposition (whether political or social), how important this issue is to the government. But it also includes whether the courts are independent of the government, and see themselves as a protector of the population, or whether they see themselves as protecting the government or elite interests. This may differ depending on the level of the court: in some systems, the most senior courts can be the most independent; in others, the local-level courts have the greatest independence because their decisions attract less attention.
The legal context includes the substantive laws that exist within the given jurisdiction and that the litigator might be able to use (including what treaties a country has ratified and what status they have domestically). But it also includes the legal culture of the system in which the litigator is operating. Are the courts typically creative and activist, or are they conservative in their decisions? Do the courts pay attention to international or comparative law sources, or are they parochial? If the issue that the litigator is litigating raises technical or scientific issues (as climate litigation often does), are the judges comfortable with such evidence? Does the litigator need to educate or socialize the judges on the issues and the types of evidence, and how open are the judges to this? How do the judges view public campaigning around a case: is it more likely to be viewed as a positive demonstration of what decision may be acceptable to the population, or a negative attempt to improperly influence the judicial process?
3.5.1 Identifying the Role of the Case in a Bigger Plan for Change
Many of these principles flow from the basic recognition that problems with deep structural roots – like climate change – cannot simply be litigated away.Footnote 43 Strategic litigation is therefore about much more than obtaining a judgment in a case. Despite what lawyers often assume, a case alone is not the solution, and the judgment is not the end. Fundamentally, strategic litigation is a larger process in which any given case is one tool to be used towards the ultimate objective of securing lasting change.
This ‘larger process for change’ is what some organizations would call their ‘theory of change’. Strategic litigation recognizes that litigation is neither a substitute for a theory of change, nor is litigation in itself a theory of change. Instead, litigation must be developed and conducted as one part of a broader plan for how advocates will achieve the desired change. That theory of change (and the role that litigation will contribute to it) requires just as much attention and rigour from strategic litigators as the strength of their legal arguments and the merits of their case.
At one level, this requires additional work by those considering bringing a strategic climate case. Recognizing that a case is one part of a broader process of change requires a rigorous assessment of each case that goes beyond the chances of winning the case on its own terms. It requires litigators to articulate what they seek to achieve by litigating this case: their ultimate goal and the contribution this case will make to that goal, particularly in the context of other efforts to create change. Clarity at the outset regarding the impacts one is aiming for, how the case will generate those, and how they will be used towards broader change is crucial for both maximizing impact and for testing assumptions about the value (and risks) of a case.Footnote 44
Recognizing that a case is one part of a broader effort for change can also bring real benefits. Assessing the role that each case will play can open up creative possibilities; it frees advocates to use a case to achieve a wide variety of impacts in support of their strategy for change, rather than trying to make every case a ‘solution’ to the problem. The most important contribution of a case might not be a win in the courtroom – it might be obtaining information through the discovery process, forcing the defendants to take a formal position on public record, or getting specific factual or legal findings from the court even if the plaintiffs do not ultimately ‘win’ the case. Strategic litigation recognizes that different stages of litigating a case each have the potential to contribute to change – developing the case, the initial moment of filing, the conduct of the trial, the delivery of the judgment, and the implementation of any remedies ordered. But it takes planning on how to use each of these moments.
Seeing the case as part of a broader campaign is also not a one-way relationship. Yes, strategic litigation requires thinking rigorously about how any given case can advance a broader campaign for change. But it also recognizes that the broader campaign for change can benefit the case. Conducting a case alongside other advocacy and activism may mean using litigation to reinforce or empower other legal and campaign initiatives – alliances between cases with young plaintiffs and the global youth movement for climate action are an obvious example.
But just as often, the litigation may rely on other advocacy. It can create the social or political conditions for a favourable decision. For example, public debates can socialize judges on an issue, and media coverage and campaigning can provide political cover for judges to make creative or courageous decisions. And planning a campaign that extends after the judgment can maintain the pressure for implementation of a favourable decision or for reforms following a loss. The principle that litigation should not displace other efforts often works to the advantage of the litigator, as well as the broader goals.
In some respects, climate litigators are advanced in this aspect of strategic litigation. Supporters of the ‘next generation’ of climate cases have identified a range of benefits – aside from any legal order sought – including: public affirmation of the scientific consensus regarding various aspects of climate change, rebuttal of misinformation, effective communication of otherwise remote-seeming harms of climate change via stories of claimants, the creation of new narratives of government and corporate responsibility for climate change, and the mobilization of the broader climate movement.Footnote 45 Supporters also claim that such cases can have broader political and economic ripple effects, like encouraging actors not directly involved in the litigation to change their behaviour. For example, such cases may prompt government policymakers or negotiators to support more ambitious targets, or prompt corporations to pledge to reduce emissions or support a carbon price.
But given the broad range of public activism and political advocacy to address climate change, it remains critical to examine rigorously how a given case will support this. Some cases appear to seek an iconic legal victory without any real plan for how such a victory is integrated into a broader theory of change. As climate litigation efforts proliferate, with more cases taken by lawyers and claimants who may not have established ties to the wider climate movement, these risks grow. And even where supporters of ambitious climate litigation do identify a range of ways that their case may contribute to the broader climate movement, there may be room in some cases for additional examination of how the case will achieve this impact and whether a case is the best way to do that. For example:
If the goal is to publicly affirm the scientific consensus, is that scientific consensus in serious dispute in the given country?
If the goal is the communication of otherwise remote-sounding harms, that will influence the choice of plaintiff and the framing of the claims. But have the litigators developed the communications and media strategy that will be required to accompany the case, or have formed partnerships with other groups that can do this?
If the goal is mobilization of a new constituency to support climate action, who are the litigators aiming to mobilize? What has been tried to mobilize this constituency in the past, and why did that not work? What is their view of and relationship with this case, how will the litigators use this case to mobilize them, and why is a court case the most effective way to do so?
If court cases are being used to push an actor to move, are the litigators (or their allies) also opening the door for them to walk through?
Will litigation produce the results that the litigators want within the needed timeframe? Some activists turn to litigation because of the urgency of the crisis and out of frustration from delays in political action. But while litigators can control when a case is filed, if they are relying on the judgment then litigation can be a long process, especially if there are appeals.
3.5.2 Challenges of Implementation
To some extent, the question of implementation is just one example of how the case is intended to contribute to lasting change. Not every strategic case defines ‘success’ in terms of the judgment itself. But the judgment is often an important part of the impact sought from a case. If so, it is necessary to plan for how to implement the decision (what is required in the days, months, and years after the judgment) if a legal victory is not to be a hollow one.
Strategic human rights litigation is full of cautionary tales of judgments that were won on paper but that failed to change the situation on the ground. Brown v. Board of Education was a huge victory, and it established a vital legal precedent. But after initially decreasing de facto segregation in schools, unequal education has increased in recent decades.Footnote 46 Landmark South African cases such as Grootboom and the Mud Schools caseFootnote 47 likewise produced impressive judgments establishing important principles, but they did not solve the problems associated with housing and education in impoverished communities.
This planning starts with the remedies requested. Lawyers always have to think about what a court has the formal power to order (and what it is likely to order based on its past practice). But strategic litigators need to give additional thought to exactly what they need to get from the judgment:
The substance matters: will the remedies being requested from the court actually address the underlying problem and its causes if implemented? In the human rights context, years of cases challenging ethnic profiling by police requested diversity training as a remedy. But later studies showed that isolated diversity training sessions had no impact on police behaviour.
The formal details matter too: often the chances of a judgment being implemented can be improved by the way that the remedies are defined. Care must be taken to craft remedies so that responsibility for implementation is clear and the extent of implementation can be monitored. For example, if the case is against the government, which department will be responsible for implementing the judgment?
But no matter how carefully the remedies are crafted, there will frequently be resistance to implementing them. This is especially the case when those remedies require major changes in corporate or governmental policy and behaviour (as opposed to ceasing a specific action). Studies of the implementation of human rights judgments show that while defendants will usually pay compensation when ordered by a court, this does not necessarily lead to a change in policy or practice. And judgments that order significant changes in policy or practice directly, or accountability for past violations, are far more challenging to implement.Footnote 48 So if litigators are asking for damages but are really aiming to change behaviour or policy moving forward, they need to closely consider and articulate how one will lead to the other.
Such challenges of implementation, political will, and resource allocation will be common in strategic climate litigation. If litigators see the judgment as the end of their case, there is a risk that they will overlook this. And though climate litigators have developed a wide portfolio of strategic cases in a short period of time, they have yet to achieve more than a limited number of favourable judgments to date. As a result, many climate litigators have not yet been confronted with the challenges of implementing strategic judgments. For example, if a case aims to increase the ambition of government mitigation policy, it is worth considering how to create a broad base of support that will give the government the additional cover or pressure it needs to undertake ambitious reform. And it is also worth considering strategies for countering the probable backlash or resistance to implementation from various interests or constituencies.Footnote 49
While the challenges of implementation may be new to the climate litigation movement at this point, there are examples that suggest some climate litigators are already ahead of their human rights counterparts. Urgenda’s strategy for implementation following its successful case against the Dutch government is one such example. Building on the broad public support that Urgenda developed for the case, it worked with 750 organizations and businesses to develop and publish fifty measures, known as the ‘50-point plan’, that the government could feasibly implement to meet the terms of the court’s emissions reduction order. The Dutch parliament subsequently adopted several motions demanding greater transparency from the government regarding its plans to meet the court’s order. The case, and the court judgment, pushed the government to move, and the broader advocacy showed them a pathway forward.
3.5.3 Evaluating Risks
While strategic litigation can be a powerful tool, the experience of human rights advocates shows that it carries risks. There will often be risks in challenging powerful state or corporate interests, and litigation is not alone in posing risks of retribution to individuals or communities. But strategic litigation carries additional risks. Some – such as the risk that litigation will backfire or entrench bad law – can be managed by carefully considering the likely response of opponents and the courts. But excessive focus on litigation also can disempower or limit other initiatives, and it can prioritize those parts of the problem that can be brought before a court over the real underlying causes.
Litigating the wrong case, at the wrong time, before the wrong forum, or making overly ambitious claims, can lead to real setbacks. Losing a case can entrench the problem that the litigation was trying to solve: it can establish bad legal precedent or legally validate the very activities being challenged; it can place other efforts to litigate in more cautious or incremental ways at risk; it can undermine the credibility of evidence or allies; and it could create a narrative that the defendants were right, even if the case was only lost on a technical or procedural point. Any of these may inhibit efforts to achieve change, whether by future litigation or by other strategies.
For example, the loss before the European Court of Human Rights in SAS v. France provided judicial endorsement of the French ban on public face veils (the niqab),Footnote 50 which undermined the impact of a challenge before the UN Human Rights Committee (a more favourable venue that ultimately gave a positive decision)Footnote 51 and imposed additional barriers to any domestic challenges to the ban. An attempt to prosecute Aung San Suu Kyi in Australia, despite her immunity as sitting Minister for Foreign Affairs, led the Australian High Court to prohibit private prosecutions for war crimes, crimes against humanity, and genocideFootnote 52 before any cases against lower-profile defendants could establish a practice of such prosecutions and show how they could work and why they were important. And while many see Brown v. Board of Education as a victory, it was the result of decades of work to undo the damage caused by an earlier failed case that enshrined ‘separate but equal’ into law for over fifty years.Footnote 53
To mitigate these risks, it is always important to carefully and critically consider the likely responses of both the opponent and the courts. It is important to consider how other parties will view and respond to the arguments. Are the opponents likely to fight in court, try to stop the case from reaching the courts, or try to undermine the plaintiffs’ credibility in public debate? And it is important to be realistic about how judges will receive the arguments; rights-oriented lawyers may take for granted views on why international law matters that are not shared by domestic judges.
Risks are not limited to cases that lose. In recent years, human rights advocates have lost public support in some states where they have been portrayed as representing the interests only of minorities while ignoring the concerns of majority populations (for example, those posed by austerity and social and economic inequality). The reality is that climate change will affect everyone. But climate litigators might want to consider whether the ways in which they select, develop, and frame cases could leave them open to similar attacks. And the mere fact of choosing litigation has costs: litigation to set the parameters of the debate, or mobilize behind a common set of asks, can lock allies into a fixed position and may reduce room for negotiation or other action. Even cases that result in successful judgments can produce adverse consequences – a judgment that steps too far outside the political or social mainstream may undermine judicial authority. There have even been instances where this has led to a court being stripped of its jurisdiction, as happened with the Southern African Development Community Tribunal.Footnote 54
These risks do not mean one should never litigate; but that those risks should be critically and rigorously assessed and weighed against the projected value of a case. There sometimes are good reasons for lawyers to take ambitious cases to pursue strategic change, even when the prospects of success are somewhat uncertain (the authors have well over a decade of experience in strategic human rights and climate litigation, with both wins and losses to our names). But it is important to take such cases on a systematic and considered basis, conscious of the risks, limits, and potential of litigation, and to identify, develop, and pursue cases in a way that maximizes the chances of true (rather than superficial) success.
3.6 Conclusion
The number and range of climate cases, in particular those with strategic ambitions, are increasing. And they are likely to continue to do so in the coming years as the effects of climate change are felt more directly by more people, and as more cases gain the attention of the public, lawyers, and civil society, we can expect more cases to be brought by a growing number of litigants. This should be welcomed, and it can be constructive. But it makes the lessons from the strategic human rights litigation community particularly valuable in this moment. Some of the examples outlined above – the importance of embedding a case in a broader theory of change or the risk of a premature or flawed case undermining other cases or strategies for change – will become increasingly relevant with the likely growth, diversification, and fragmentation of the climate litigation community. And new cases will bring new challenges, some of which may be familiar to strategic human rights litigation (for example, the ethical issues that can arise when litigating for broad strategic aims but in the name of vulnerable communities or individuals whose interests may not be perfectly aligned with those of the strategic litigators).
There is an undeniable urgency to climate action. Climate litigators feel this urgency and sometimes emphasize that there is no time to waste. But this call to prompt action also means that there is no time to repeat the mistakes of the past or to miss an opportunity to maximize the impact of successes. The experience and debates of human rights activists on how and when to use litigation strategically and how to maximize the chances of leveraging a case for systemic change are a rich source for climate litigators to draw upon.
4.1 Introduction
This chapter argues that low-profile climate litigation, such as routine administrative law cases, have significant transformative potential and should receive more attention. High-profile climate litigation, such as structural constitutional claims, tort-based cases against the fossil fuel industry, and public international law cases, raise awareness and are highly relevant to advancing legal climate protection. However, around the world, routine climate-relevant claims have had unexpected positive impacts, and we argue that advancing such cases in a coordinated manner could create a “butterfly effect.” In most cases, courts do not hand down spectacular, precedent-breaking decisions or treat climate change like an exceptional legal problem. Instead, they adapt existing legal frameworks to make them workable for climate-related issues. We argue that this normalization or routinization of climate adjudication broadens its reach and impact and is less prone to backlash and vulnerabilities than more spectacular cases, and, as a result, their potential should be further studied and tested.
4.2 Climate Litigation: A Typology
According to the chaos theory metaphor, the minuscule motion of a butterfly’s wings can trigger a tornado half a world away. The term “butterfly effect” stems from Edward Lorenz’s meteorological studies in the 1960s, which found that the details of a tornado, such as its exact time of formation and trajectory, was influenced by minor changes in the climate system several weeks earlier. Lorenz saw the effect when observing runs of his weather model, noticing that a small change in the initial weather conditions created a significantly different outcome.Footnote 1 Analogously, Catharine MacKinnon, in her book Butterfly Politics, argues that seemingly insignificant actions, through collective recursion, can intervene in unstable systems to produce systemic change and that the right, seemingly minor interventions in the legal realm can have a butterfly effect that generates major social and cultural transformations.Footnote 2
In a similar way, we argue that the bottom-up climate change regime created by the Paris AgreementFootnote 3 has a potential to generate “butterfly climate adjudication” by injecting climate relevant reasoning into courts’ routine decisions. Simple adaptations of domestic legal frameworks and cross-application of precedents within and across countries could affect the global atmosphere, one legal case at a time, by triggering aggregate effects.
The growing body of literature analyzing climate change litigation and its effects on climate governance provides insights into its potentials, problems, and limitations, including how interest groups use climate litigation strategically and its effects on regulatory responses and individual and corporate behavior.Footnote 4 But few studies have concentrated on assessing developments in the case law itself, which is explored in this chapter, with a focus on low-profile climate litigation against governments before domestic courts.
Climate cases are diverse. They differ with regard to actors, interests, claims, bodies of law used to support the claims, and the types of court involved. We distinguish five main types: (i) civil law (tort) cases, seeking compensation from fossil-fuel corporations for climate-related damages; (ii) criminal law cases against companies; (iii) administrative law cases, seeking regulation and accountability for climate change mitigation or adaptation; (iv) constitutional law claims brought before domestic courts, and (v) public international law cases, typically demanding protection for communities most vulnerable to climate-related harms.Footnote 5
In civil law cases, plaintiffs use nuisance or negligence doctrines to claim that emitters of greenhouse gases are required to repair harms caused by their emissions. Petitioners direct these claims mainly toward fossil fuel corporations. Petitions include requests for compensation for harms to the environment and court orders for corporations to reduce emissions. Paradigmatic cases include Kivalina v. Exxon et al.,Footnote 6 which focused on the climate-related displacement of the Alaska Native village of Kivalina, and Comer v. Murphy Oil,Footnote 7 brought by landowners in the United States (Mississippi) claiming that oil and coal companies’ emissions contributed to climate change, which in turn caused the sea-level rise that added to the intensity of Hurricane Katrina. Tort cases have been dismissed for posing non-judiciable, political questions and for difficulties linking alleged harms to particular corporations’ emissions. New data tracking methods for the anthropogenic emissions of specific producers could yield different results.Footnote 8 For more on these emission attribution methods, see Richard Heede’s chapter in this volume (Chapter 12). For more on climate litigation against major fossil fuel corporations, see Joana Setzer’s chapter in this volume (Chapter 10).
In criminal and corporate liability law cases, American citizens and state attorneys have filed claims of fraud and conspiracy against fossil fuel companies for creating a false scientific debate about climate change to mislead public opinion and investors.Footnote 9 Just as tobacco companies were accused of hiding documents proving that tobacco is harmful, fossil fuel and energy companies are being accused of conspiring to deny climate change despite having evidence to the contrary.Footnote 10 Charges of securities fraud are used to pressure companies to disclose to investors the risks they face as governments try to limit greenhouse gas emissions. Climate protection through criminal law potentially includes utilizing existing domestic law crimes against the environment; domestic crimes that could be created to protect elements of the climate system; and international criminal law, such as the possible penalization of “ecocide” as suggested by Polly Higgins et al.Footnote 11 or “postericide” as suggested by Catriona McKinnon.Footnote 12
In administrative law cases, plaintiffs claim that governments are obliged to take – or not take – actions to mitigate or adapt to climate change according to domestic and/or international commitments. In Section 4.3, we zoom in on these cases, based on our previous studyFootnote 13 and expand it to include constitutional law claims being brought in various countries, where citizens seek to hold their governments accountable for constitutional rights violations stemming from inadequate climate regulations in areas such as forest conservation and the licensing of carbon-intensive projects.Footnote 14
The last category is public international law cases. Petitions are filed before international courts and treaty bodies regarding the adverse effects of climate change on, for example, Indigenous peoples; communities with limited adaptation capacity, like the inhabitants of small island states or those who are especially vulnerable to the effects of climate change due to poverty or geographical location; and sites considered part of the world’s heritage. The dominant argument is that governments and corporations most responsible for global emissions have an obligation to shift to more sustainable practices and to assist communities in other countries suffering climate-related harms of no fault of their own, particularly those lacking the means to adapt. So far, no international court or treaty body has ruled in favor of communities claiming special vulnerability to climate change.
Climate litigation thus incorporates diverse and innovative ways of building legal arguments to protect the global climate system. “Bold” climate change decisions, creating extraordinary new precedent and establishing groundbreaking statutory or constitutional case law, are of great importance but often are difficult and risky for individual judges to make and for tribunals to agree upon – and are more likely to be overturned by higher courts.Footnote 15 The more novel the judicial interpretation or case law, the greater the risk of legislative backlash. Implementation of rulings is also more difficult when the gap between the decision and the status quo is large.Footnote 16 These risks are particularly high when dealing with complex and politicized climate policy issues and are a reason why climate litigation should not only aim for exceptional rulings. Notwithstanding the importance of climate cases based in private law, criminal law, constitutional law, and international law, we nonetheless zoom in on administrative law claims as a strategy to build legal capacity to protect the climate system. These discrete and rather unspectacular cases get less media and scholarly attention but have achieved more favorable rulings. In Section 4.3, we explore the potential of existing case law to trigger a “butterfly effect” in climate adjudication. Section 4.4 discusses possible ways of unfolding that potential, as well as some vulnerabilities.
4.3 Administrative Litigation in Search of a Butterfly Effect
Scholars have argued that climate change cases often fail because they are solved as ordinary environmental cases with no distinctive climate jurisprudence developed to address the unique characteristics of climate change.Footnote 17 In our former study, we found this critique to be valid with regard to tort law cases against the fossil fuel industry, while cases against governments display limited, but meaningful, jurisprudential developments that serve to unblock climate governance and improve consideration of climate impacts in project planning and public financing decisions.Footnote 18 Hence, the importance of climate adjudication does not (only) depend on the development of distinctive climate jurisprudence.
When exploring climate cases within the administrative and constitutional law categories, we have found that most cases against governments have been decided in favor of climate protection. This does not necessarily mean that extractive projects are halted or that global emissions of greenhouse gases decrease, but it indicates a significant role for adjudication in bringing climate concerns to bear on planning and risk assessment procedures.Footnote 19
Existing case law is concentrated in the United States and Australia, followed by New Zealand and the United Kingdom. Most cases challenge licenses granted by local planning authorities for extractive and carbon-intensive projects, like coal mines and coal power plants that are central to the economy of these countries. Licenses are challenged for not sufficiently considering global atmospheric harms in environmental impact assessments (EIAs). There has also been successful climate litigation challenging extractive projects in Global South countries like Colombia and South Africa.Footnote 20 Although petroleum is at the core of the climate change problem, few cases have challenged governments over oil extraction permits or related harms and all have been decided against the plaintiffs.Footnote 21 Cases challenging permits for renewable energy projects – often citing other negative environmental impacts, like noise, damage to landscapes, or harms to birds and other wildlife – present mixed outcomes from a climate perspective. Litigation aiming to unblock the administrative inertia impeding the implementation of climate policies has succeeded in India and Pakistan and in Europe in the famous Urgenda case, which cited international law and human rights law in a tort-based claim to force the Dutch government to create stronger mitigation targets – triggering a wave of human rights–based mitigation claims.Footnote 22
Administrative climate litigation impacts climate governance in the United States and Australia through the National Environmental Policy Act (NEPA) and land use planning litigation, respectively.Footnote 23 The first administrative case in Australia was brought to court in 1994 by Greenpeace.Footnote 24 Still using the language of “global warming,” it challenged a state council decision to grant development consent to a coal power station, claiming it would harm the global atmosphere and impact the climate system. Greenpeace alleged that the energy to be produced by the plant was not needed for domestic consumption, and thus its atmospheric harms were not justifiable. The case was dismissed. The alleged harms were considered speculative, and economic development and jobs were the priority.
Two decades later, NGOs in Austria and the United Kingdom challenged permits granted for the expansion of the Vienna and Stansted (London) airports based on their projected contributions to greenhouse gas emissions.Footnote 25 These cases were also dismissed. Despite acknowledging international emissions reduction commitments, economic growth and jobs were prioritized. In contrast, in February 2020, a similar case concerning the expansion of London’s Heathrow AirportFootnote 26 was decided in favor of the petitioners, by the UK Court of Appeal, based on the United Kingdom’s pledges pursuant to the Paris Agreement. The ruling was, however, overturned by the Supreme Court on December 16, 2020, on the grounds, among others, that the formal ratification of the Paris Agreement did not mean that it (yet) constituted “government policy.”Footnote 27 Plan B Earth announced that it will appeal the judgment to the European Court of Human Rights.Footnote 28
When asked to align environmental and economic considerations in decisions concerning extraction and development projects, the jurisprudence tends to favor economic considerations without rigorous examination of the principles of sustainable development, norms that are part of the global regulatory regime on climate change, or relevant soft law such as the Oslo Principles on Global Climate Change (2015).Footnote 29 The jurisprudence on sustainable development and the application of the precautionary principle still need more elaboration in order to effectively influence decision-making in the administrative state.
The potential of routine climate cases could be enhanced through the inclusion in more countries of climate arguments in relevant administrative litigation, such as project licensing, and by exploiting synergies with more traditional environmental litigation, such as that on local air pollution. Routine administrative law cases are important to triggering a butterfly effect on climate change. They do not rely only on visionary and brave judges and, importantly, can integrate climate change concerns into the everyday fabric of the law and ordinary legal education.
A key challenge has been the portrayal of climate change as an abstract and intangible problem, located in distant lands and the far future. This is changing, though, as the scientific and legal capacity to understand and attribute responsibility have developed. In many administrative court cases, climate change is now discussed as a matter of the here and now, with precise claims regarding what the government should do – including how projects’ estimated greenhouse gas emissions should be counted and considered in the impact assessments that inform licensing.
The overall aim of court cases filed against governments is to make governments’ international declarations and domestic constitutional and legal commitments matter in everyday climate-relevant administrative decisions – including land use, development policy, urban planning, and incentives for the energy sector (renewable and non-renewable). Table 4.1 distinguishes some currents or themes key to the climate change debate within administrative law cases, which build traction and legal capacity for climate protection within the administrative state by transforming climate change from abstract and complex discourse to issues suitable for adjudication. Some cases reflecting each current are also listed. Some are high-profile cases, while others are routine cases that could set off a butterfly effect.
Administrative law climate litigation currents | Cases |
---|---|
Role of states in protecting forests and carbon capture ecosystems |
|
Decarbonizing transport |
|
Adequacy of national emission reduction targets |
|
Fairness of market incentives for the renewable energy industry |
|
Licensing of renewable energy projects |
|
Licensing of new fossil fuel extraction projects |
|
Protection of water resources for climate resilience |
|
Publicity of information on fossil fuel investment |
|
States’ role in providing climate-related refugee protection |
Climate-related litigation often involves administrative due process claims. At their core, these court cases discuss the duty of governments to take precautionary measures to avoid the excessive accumulation of greenhouse gases in the atmosphere and to protect citizens from the negative impacts of those already accumulated.
We suggest that by accommodating existing legal norms and doctrine to make them workable for climate change, some courts have managed to create important precedents from which an “unspectacular” but distinct climate jurisprudence is evolving. The courts seem receptive to the argument that discrete, local, bottom-up solutions are important, so taking incremental steps is appropriate.Footnote 30 That the jurisprudence is diverse, uneven, and produced in different legal systems is no reason to overlook its contributions to tackling the collective action problem that is climate change.
By settling the debate on the validity of climate science in public decision-making, courts have managed to establish climate change as a collective action problem that requires regulatory interventions. A number of courts have contributed important precedents to the evolving climate jurisprudence that could be used by other courts confronted with similar cases and inserted into routine administrative adjudication. Some of these precedents are presented in Table 4.2.
Precedent | Court and Case |
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Greenhouse gases are air pollutants and thus subject to state regulation |
|
Climate change risks are a mandatory consideration in EIAs of new carbon-intensive projects |
|
Climate adaptation should be a consideration in planning for new development projects |
|
There is a governmental duty of care for climate change in relation to human rights |
|
There is a governmental obligation to mitigate climate change (halt deforestation) in order to protect human rights and the rights of nature |
|
State incentives for renewable energy projects are a legitimate policy objective |
In some high-profile cases, judges also go for traditional legal doctrines rather than new or precedent-breaking ones. Although Massachusetts v. EPA and Urgenda v. the Netherlands are “spectacular” cases, they were decided in favor of climate protection with a modest adaptation of existing legal notions. In Massachusetts v. EPA, the notion of “air pollutant” in US law was extended to encompass global atmospheric pollution. In Urgenda, the “duty of care” was extended to include governmental responsibility for adequate climate mitigation policy. Future Generations v. Colombia used existing human rights duties to adjudicate governmental responsibility for adequate mitigation policy. It became “spectacular jurisprudence” with the unsolicited declaration of the legal personhood of the Colombian Amazon. Yet the rights of nature had already been recognized in Colombia and elsewhere.
In sum, we suggest that the most radical contribution of courts to climate governance has been making policy challenges tangible and routine in nature. If cited and used across countries, unspectacular precedents have the potential to infuse broad areas of law and intervene in unstable climate governance systems in ways that – hopefully – positively affect the global atmosphere. Litigants should aim for butterfly judgments, seeking to incrementally improve the global climate system. But as with the butterfly effect for meteorological predictions, it will be impossible for future analysts to trace atmospheric changes to any particular court case.
Although the developments discussed here are important, climate jurisprudence still has a long way to go, not least with respect to the design of remedies and implementation-monitoring mechanisms and the expansion of arguments regarding sustainable development and the precautionary principle.
4.4 Concluding Reflections: Potential, Vulnerabilities, and Ways Forward
Since the early 1990s, when the first climate claims were brought to court, jurisprudence has developed, ranging from the rejection of climate claims for being too speculative to the use of reports from the Intergovernmental Panel on Climate Change (IPCC) as solid legal proof.Footnote 31 This jurisprudence has nudged governments into making better-informed decisions on a variety of issues, including fuel efficiency standards, greenhouse gas emissions from coal power plants, the licensing of new extractive projects, airport expansions, housing projects along coastlines affected by sea level rise, the use of water sources for industrial processes when climate resilience is at stake, and market incentives for renewable energy projects.
By settling the debate on climate science and confirming that all mitigation contributions matter, courts have managed to bring climate change to the here and now. Courts have established climate change as a collective action problem that requires regulatory interventions and have managed to adapt existing legal frameworks to accommodate and mainstream climate change into routine decision-making processes. By doing so, they are creating legal capacityFootnote 32 within the administrative state to deal with climate risks and disproving arguments that climate change is too abstract and speculative for courts to handle.Footnote 33
In this chapter, we have shown that important climate protection precedents have been created by courts around the world, thereby helping the administrative state to untie some knots related to the super wicked nature of climate change.Footnote 34 Judiciaries are finding ways to establish, case by case, the type of legal problem climate change is: a human rights problem, a global atmospheric pollution problem, a problem concerning the adequate assessment of the impacts of carbon-intensive projects, a sustainable development problem, a biodiversity protection problem, a problem of justice for future generations and other species, and a problem of market incentives for renewables.
However, experimentalist, deliberative, and dialogical modes of adjudication are still uncommon in climate jurisprudence,Footnote 35 and remedies and monitoring mechanisms are only exceptionally included or explained in climate court rulings. A normativist approach dominates, focusing on rights declarations. There are still few signs of democratic experimentalism and the participatory implementation of solutions that could foster more cooperative relationships among branches of power, which is needed to address the complexities of the climate problem.Footnote 36
International treaties are important in unclogging climate action and understanding the domestic legal currents into which they can be channeled permits the development of long-lasting legal responses.Footnote 37 Courts’ routinization of climate-relevant claims expands the existing legal frameworks that judges are most comfortable using. Thus, courts have created space within existing laws to mainstream climate change into adjudicative practice.Footnote 38 This is a desirable outcome. The more climate litigation permeates everyday law, the more traction it has in the legal system. Exploring ways of scaling up and coordinating cases to reach a butterfly effect in climate litigation across jurisdictions should thus be part of a research agenda for climate protection advocates and researchers.
If the coronavirus pandemic has taught us anything, it is that, when it comes to the natural world, political borders are irrelevant. And like the pandemic, climate change threatens everyone. We all share a common interest in preserving the well-being of our planet. But the changing climate does not affect us in the same ways, at the same pace, or to the same degree. This is because of where we live but also due to our respective levels of wealth and income, our physical and mental disabilities, even the color of our skin. Owners of gated private homes on the Florida Keys are threatened by rising seas – but the nature of their concern, and what can and will be done to address it, contrast powerfully with the situation of the residents of downtown Miami, let alone the Pacific island of Vanuatu.
How do we account for the changing climate’s profoundly differential impacts, while at the same time marshaling a world-wide coalition capable of addressing them? How do we appeal to what unites us, while at the same time persuading those with more responsibility, and more resources, to bear a greater burden of the costs of mitigation and adaptation than others? We can’t address climate change without contending with issues of difference and inequality. Given that, and assuming that litigation is one of many essential paths to change, what kinds of legal action are most likely to get us where we need to go? And what does climate litigation viewed through the lens of equality look like?
5.1 Climate Change Imposes Disproportionate Impacts
Climate change imposes differential impacts on the marginalized and disadvantaged. As the Inter-Governmental Panel on Climate Change (IPCC) has made clear, “the impacts of warming up to and beyond 1.5°C, and some potential impacts of mitigation actions required to limit warming to 1.5°C, fall disproportionately on the poor and vulnerable.”Footnote 1 More specifically, “populations at disproportionately higher risk of adverse consequences with global warming of 1.5°C and beyond include disadvantaged and vulnerable populations, some indigenous peoples, and local communities dependent on agricultural or coastal livelihoods.”Footnote 2
Compared with wealthier communities, poor and marginalized people are more exposed to adverse climate events, more likely to suffer harm from such events, and less able to recover from those harms.Footnote 3
The poor are more exposed to climate risks because of their location and their work. Worldwide, exposure to drought is more prevalent in rural areas, where a larger proportion of the population lives in poverty, compared with urban areas. One study found that 43 percent of people in rural areas were regularly exposed to drought compared with 32 percent in urban settings.Footnote 4 In cities, people living in less vegetated areas face a 5 percent higher risk of heat death.Footnote 5 People who work predominantly outside – in low-paid agricultural or construction jobs – are more exposed to the effects of rising temperatures than more highly skilled and highly paid workers. In the United States (primarily Latinx) immigrant non-citizen workers are three times more likely to die from heat exposure than American citizens, and when accounting for age, the risk is more than twenty times higher.Footnote 6
It’s not only that the poor are more exposed to climate risks; even where all communities face an identical climate event, they are more susceptible to harm. For example, low-income households in Honduras reported considerably higher asset loss (31 percent) resulting from Hurricane Mitch than did the non-poor households (11 percent), even in areas where the former had comparatively less exposure to the hurricane.Footnote 7 While climate-induced fires torch the homes of rich and poor alike, poorer families are more likely to live in densely packed communities, characterized by little or no observance of building codes and limited physical separation between residential and industrial activity.
The ability to move out of harm’s way is also largely dependent on economic means. Where wealthy families can load up cars and trailers with treasured belongings, the poor typically have no choice but to escape with what they can carry or remain to protect their possessions at great personal risk. During disasters, early warnings and evacuation instructions may also be inaccessible to marginalized communities because of low literacy rates or language barriers.
Even well-intended but inadequately designed adaptation infrastructure can end up exacerbating the vulnerability of those with fewer economic resources. In Bangladesh, the construction of the Greater Dhaka Western Embankment, intended to protect the capital from catastrophic flooding, worsened the impact of seasonal floods on surrounding rural areas, adding salinity to soil, reducing harvest, and increasing rural to urban migration. Some efforts to lessen vulnerability to climate risks – through the construction of sea walls, landscaped berms, or other adaptation infrastructure – may spark a cycle of “green gentrification,” whereby rising real estate values force lower-income communities into denser and more vulnerable tracts of land with greater exposure to climate effects.Footnote 8
Finally, poorer and even some middle-class communities are less able to recover from climate-caused damage compared with wealthy communities. A comparison of the effects of two recent fires in northern California shows this disparity in recovery time. Residents affected by the 2017 fires in North Bay (including Sonoma County, where some of the world’s most expensive grapes are cultivated in over 400 vineyards), had completed the removal of debris in little over four months. In contrast, it took nearly a year to finish disposing of debris following the 2015 fire in the Valley, where the poverty rate was twice as high and insurance coverage was less comprehensive. In addition, better-resourced North Bay residents mobilized their political power to pressure insurance companies to make payouts without itemized inventories, whereas 80 percent of Valley residents were required to itemize lost items before receiving insurance funds, leading to only 32 percent of residents receiving payouts.Footnote 9 Among wealthy communities in southern California, private firefighting services have emerged as a critical response tool that is available only to those with the ability to pay for it.Footnote 10
Even within the same city, wealthier communities often benefit more from so-called “neutral” policies that in fact generate differential impacts. New York City’s post-Hurricane Sandy plan to build a large U-shaped barrier running for ten miles along the coastline of southern Manhattan is an example of a response to climate change that seems to help everyone but in fact may not address the specific needs of the most vulnerable:
“In many places building a barrier is enough,” says Stanley Fritz from the Harlem-based environmental justice organization WE-ACT. “Take south Manhattan and the Financial District. Those communities are affluent and powerful enough to receive protection – and they are getting it. For others in our city, dealing with climate change is not just about infrastructure but social policies. It’s not just about preventing the worst but finding long-term solutions to the issues that disproportionately put these communities at risk,” including poor infrastructure and a lack of adequate transportation, housing and basic public services.Footnote 11
Women are disproportionately affected by climate change as a result of the underlying social and economic barriers they confront more generally:
In countries where gender inequality is more severe, death rates for women in climate-related disasters – like hurricanes, floods, tsunamis – are shockingly high. The reason could be as simple as women not being taught to swim. But there’s also the fact that women in more unequal societies don’t tend to move about in public spaces, which means they won’t hear early warnings, and social expectations to stay in the house unless chaperoned means women don’t get out fast enough. According to the United Nations Development Program (UNDP), women accounted for 61% of fatalities caused by Cyclone Nargis in Myanmar in 2008, 70–80% in the 2004 Indian Ocean tsunami, and 91% in the 1991 cyclone in Bangladesh. Even if women survive the event itself, the aftermath is just as perilous. When Hurricane Katrina hit New Orleans in 2005, 80% of those left behind in the Lower Ninth Ward after the storm were women. More women than men were living below the poverty line, fewer women had cars, and women were more likely to have dependents, such as children and elderly or sick relatives – all of which impaired their ability to leave the affected area …. Women are also impacted by the more ‘everyday’ effects of rising global temperatures. Rising humidity and more frequent flooding means more mosquito-borne diseases, which women are exposed to as water-collectors. Drought means food shortages, which means increased workload for women as food producers – plus women and girls are more likely than men and boys to go without food when there’s not enough to go round.Footnote 12
Race and color are other vectors through which climate change generates differential outcomes. The Global South, which is suffering some of the worst impacts from climate change, has on the whole the fewest resources to address it. Laura Pulido writes that “when we look at who will pay the greatest cost [for climate change], in terms of their lives, livelihoods, and well-being, it is overwhelmingly … the ‘darker nations’…. The rich, industrialized countries, which are disproportionately white, will escape with vastly fewer deaths.”Footnote 13
But even within wealthy countries, climate justice is often racial justice. “The spatial distribution of risk, vulnerability and death follows along pre-existing lines of racial inequality. In the United States … the urban poor, which are overwhelmingly nonwhite, will die at the highest rates because of a lack of air conditioning.”Footnote 14 The impacts of climate change are magnified by numerous public policy choices that have imposed a range of environmental injustices. The disproportionate location of fossil fuel plants in communities of color increases asthma and other health risks that are worsened by climate change.Footnote 15 Throughout the United States, air pollution is “disproportionately caused by consumption of goods and services mainly by the non-Hispanic white majority, but disproportionately inhaled by black and Hispanic minorities.”Footnote 16 As Robert Bullard, professor of urban planning and environmental policy at Texas Southern University and a pioneer in the field of environmental justice, has observed, “It’s violence when you have all this pollution pumped into a neighborhood, and people are choking.”Footnote 17
As a result of historically rooted patterns of urban housing segregation, many African Americans living in urban heat islands with little tree canopy are more susceptible to the temperature increases that climate change is already producing. Owing to disparities in access to, and quality of, health care, black women who live in such isolated areas of intense heat are at higher risk of giving birth to premature, underweight, or stillborn babies than white women.Footnote 18
Recovery in the aftermath of a climate disaster is also affected by the differential vulnerabilities of distinct racial communities. Confronted with slow or inadequate recovery efforts in their neighborhoods, African Americans were less likely than white residents to return to New Orleans following Hurricane Katrina. The city’s Lower Ninth Ward, where 98 percent of residents were African American, contrasted with nearby Lakeview, whose population was 94 percent white. Both suffered catastrophic flooding in the disaster. But a decade later, the Lower Ninth Ward had lost 68 percent of its population, whereas Lakeview was down only 16 percent.Footnote 19
Government policies in the aftermath of Katrina – which former US Congressman Barney Frank condemned as “ethnic cleansing through inaction”Footnote 20 – played a role in the disparate reconstruction efforts. As a result, “New Orleans no longer has a public hospital, though prior to Katrina, it was home to the nation’s oldest one …. The largest housing recovery program in U.S. history, ‘Road Home,’ was created in the months after Katrina. But money was disbursed based on the appraised value of a home rather than the cost of rebuilding, even though a home in a white community was typically appraised at a far higher price than the same house in a black community.”Footnote 21
In addition to poverty, gender, and race, another dimension along which the effects of climate change fall is political power. Countries in the Global South, who have contributed least to the problem, are on the whole likely to suffer the worst consequences, largely because, at least until now, they have lacked the political capacity to force more equitable burden sharing. But political power is not just a determinant of global climate inequality; it also imposes disparate climate change impacts on individual countries. The observations of a Palestinian environmental rights activist are telling:
For Palestinians, climate change is not just a natural phenomenon, but a political one. Israel’s regime of occupation and apartheid, which denies us the right to manage our land and resources, exacerbates the climate crisis Palestinians face, making us more vulnerable to climate-related events. The most extreme example is the Gaza Strip, where two million Palestinians live in an open-air prison under Israeli occupation and siege. The UN projected that Gaza will be unlivable by 2020. Many say it already is. Gaza’s acute shortage of potable water has been worsened, not only by climate change but also by Israel’s restrictions on the entry of materials and fuel needed for wastewater treatment. As a result, sewage has infiltrated Gaza’s aquifer and is flowing untreated into Gaza’s coastal waters, damaging marine life and health. Ninety-seven percent of Gaza’s scarce water is now unfit for human consumption and contaminated water causes 26 percent of all illnesses in Gaza, and is a leading cause of child deaths. In one of the countless tragic examples of the impacts, a five-year-old boy, Mohammed al-Sayis, who went to Gaza’s beach with his family to escape the heat, died in 2017 after swimming in seawater contaminated by sewage.Footnote 22
The extent of politically determined climate outcomes in Palestine is extreme. But the inverse relationship of heightened climate change impacts to political power is evidenced, in different ways, from the vulnerable low-lying nations of the Pacific to Washington, DC.
5.2 Pursuing Climate Justice through an Equality Lens Is a Choice
Climate change is an objective fact. But its impacts vary greatly and depend significantly on factors that are a function of political choice. And so, it should not be a surprise that not everyone working to address climate change is also focused on addressing inequality. Some go so far as to argue that climate change is an existential crisis and thus everything else should be put on hold. First, they say, save the planet, then worry about racism, sexism, poverty, and other problems. In an interactive poll conducted in early 2020 on the UN Sustainable Development Goals, The Guardian newspaper found that 51 percent of readers chose to save the planet ahead of all other priorities, compared with 16 percent who would end inequality above all.Footnote 23 An October 2019 survey of EU citizens by Eurobarometer found that fighting climate change was seen as the top priority for Europe, barely ahead of combating social inequalities.Footnote 24
Indeed, some of the most prolific climate philanthropists have been sharply criticized for failing to address inequality. Although in the midst of a brief presidential campaign he subsequently apologized, New York City’s former mayor Michael Bloomberg was responsible for adopting and sustaining a policy of massive discriminatory stop and frisk practices that, during the 2000s, violated the constitutional rights of hundreds of thousands of young men of color.Footnote 25 In pledging ten billion dollars to fight climate change, alongside ambitious carbon targets for his Amazon company, Jeff Bezos declared: “It’s going to take collective action from big companies, small companies, nation states, global organizations, and individuals.”Footnote 26 Yet Amazon’s fortune has been built on a same-day delivery model, an airline shipping business, and a vast cloud-computing venture whose clients include major fossil fuel companies. Its annual carbon footprint is equal to that of Norway. The company is facing criticism for a lack of diversity in its senior leadership team and for having allegedly fostered a hostile work environment for low-wage employees, many of them black and brown, in its warehouses.Footnote 27
More generally, private money often flows into climate initiatives that are only accessible to, or deliver benefits primarily for, the wealthy. Electric vehicles, efficient heating systems, home insulation, and improvement in solar technology largely benefit a small section of society whose resources already shield them from the worst effects of a changing climate. By contrast, investments in mass transit systems, power transmission infrastructure to deliver clean energy to rural areas, or protecting and preserving global forests would help meet carbon reduction targets and benefit a more inclusive cross-section of humanity.
In respect of public financing, governments of richer countries in the Global North have long resisted demands from poorer nations for compensation commensurate with their historically disproportionate contributions to climate change.
5.3 The Rationale for an Equality Lens
So, if pursuing climate justice – and, in particular, litigation – through an equality lens requires a deliberate choice, why take that path?
The most compelling reason is moral. It’s precisely because those least culpable for climate change will suffer its most severe impacts – within cities and regions and across the globe – that an approach that takes account of that imbalance is essential.
But ethics don’t always drive law and politics. Thankfully, applying an equality lens to climate litigation is not just the right thing to do; it’s also more effective.
In the realm of politics, even the threat of equality-focused climate litigation can highlight, and help leaders correct for, the risks of imposing new taxes (for gasoline or other items) that disproportionately affect persons of modest incomes or of shutting down coal plants or palm plantations without considering the employment prospects for workers and farmers. In the absence of legal action, French President Macron’s failure to consider the costs for workers of new fuel duties imposed in 2018 to fight climate change helped give rise to the nationwide “Yellow Vest” protest movement that eventually forced Macron into a politically humiliating U-turn.Footnote 28 Leveraging the possibility of litigation focused on unequal burdens can promote more politically sustainable climate-friendly policies.
An equality frame may also enhance the viability of climate litigation in the courtroom, easing some judges’ understandable concerns about deciding what are sometimes termed “political questions.”Footnote 29 Courts in countries around the world have built up substantial experience in adjudicating equality claims, and there is now a well-settled jurisprudence at national and international levels on which to rely. More fundamentally, as John Hart Ely and others have taught, courts considering claims on behalf of disfavored groups are acting, not to undermine but rather to buttress and reinforce democratic norms – by demanding attention be paid to those whose interests are often overlooked in a majoritarian political process.Footnote 30 By framing climate cases at least partly with an equality focus, litigants may help unelected judges overcome the common – and forceful – criticism that courts should step aside and let the elected branches address contentious political issues. There’s nothing wrong with ensuring that governments pay necessary, and sometimes special, attention to people with less power and fewer resources – those who are already bearing the brunt of climate change and will continue to do so. That’s justice.
And in the sphere of public discourse, an equality lens enables advocates to build a narrative about climate change that is less technical and more human. Equality litigation and related advocacy center the voices of the most marginalized – who, in the climate context, include agriculturalists, forest dwellers, smallholders, Indigenous persons, and people residing on or near coastlines. By underscoring the ways in which climate change is a reflection of unjust power relations, a focus on equality makes it more likely that policy will attend to climate change’s causes and help ensure that those most responsible bear the greatest costs of redress.
5.4 Drawing on the Lessons of Equality Litigation
Whether pursued on behalf of women, racial and ethnic minorities, persons with disabilities, gays and lesbians, transgender individuals, or others, equality litigation has broadened educational access, saved lives through the provision of essential medicines, and struck down arbitrary barriers to employment and economic opportunity. This rich history has generated insights of potential relevance to legal action on behalf of the climate.
Climate litigators might draw on the accumulated experience of equality litigation in marshaling detailed statistical evidence of systematic problems affecting large numbers of people over extended periods of time; defining the affirmative responsibilities of states to take affirmative measures to prevent, as well as to redress, certain kinds of harm; and crafting, monitoring, and enforcing collective remedies. Precisely because climate change affects some more negatively than others, climate justice advocates could usefully capitalize on the practiced ability of equality litigators to frame a problem and tell a story in ways designed to engender sympathy, solidarity, and support for persons who are most vulnerable, least heard, and most susceptible to “othering.”
Experience has shown that litigating against governments, though essential, is not sufficient to address inequality in many spheres of life. Private actors play a major role in fostering, and accentuating, climate change and its disproportionate impacts. Equality litigation offers doctrinal tools like “positive obligations” and “positive action,” as well as experience with direct action against corporate entities, which may be useful in highlighting, and helping articulate the contours of, the responsibility of private actors to address climate change.
Finally, an equality-focused climate legal strategy will have to learn from the mixed history of equality advocates in honestly reckoning with the risks and costs of litigation; marrying litigation with other tools of advocacy; ensuring that litigation is owned by, and rooted in the struggles of, the communities on whose behalf litigation is brought; planning early for the challenge of implementing any resulting judgment; and magnifying the beneficial effects of litigation other than final judicial victory.
As in other areas of law, just because litigation cannot achieve everything does not mean it cannot do much good. Particularly when more than a quarter century of intergovernmental negotiations have yielded such limited progress, it would be folly to discard any tool that offers a reasonable prospect of advancing the ball.
5.5 What Would Climate Litigation Pursued through the Equality Lens Look Like?
To be sure, not all climate litigation should explicitly raise issues of equal treatment. The landmark December 2019 Urgenda judgment of the Dutch Supreme Court rightly underscored the Dutch government’s duty of care to all its citizens in reducing greenhouse gas emissions.Footnote 31
But while some cases should advance the universal rights of everyone to a sustainable climate, others can call out the distinctive threats that climate change poses to vulnerable groups. Litigation has already been brought on behalf of children and youth, whose rights to life and a healthy environment were vindicated by the 2018 ruling of the Colombian Supreme Court of Justice in a case brought by DejusticiaFootnote 32 but were dismissed for lack of standing early in 2020 by a divided panel of the United States Ninth Circuit Court of Appeals in the Juliana litigation.Footnote 33 In the matter of Teitiota v. New Zealand, the United Nations Human Rights Committee recognized, for the first time, the interests of climate refugees – specifically, that forcibly returning a person to a place where their life would be at risk due to the adverse effects of climate change may violate the right to life under Article 6 of the International Covenant on Civil and Political Rights.Footnote 34
And legal action specifically targeting the disproportionate impacts of climate change is accelerating. In July 2020, as a series of racial justice protests following the police killing of George Floyd in Minneapolis rippled across the United States and the world, Minnesota’s attorney general underscored climate change’s disproportionate impacts for “people living in poverty and people of color” when launching a lawsuit against Exxon, three Koch Industries entities, and the American Petroleum Institute for allegedly deceiving the public about their product’s climate risks.Footnote 35 In a complaint filed the next day against four carbon majors for deception about the climate, Washington, DC’s attorney general echoed the emphasis on the “particularly severe impacts” of flooding, extreme weather, and heat waves on “low-income communities and communities of color.”Footnote 36 That same month, two large US energy companies – Dominion Energy and Duke Energy – pulled the plug on a major natural gas project – the proposed Atlantic Coast Pipeline – which would have delivered fracked gas from West Virginia to population centers in Virginia and North Carolina.Footnote 37 The project ultimately succumbed to economic hurdles and legal challenges to the proposed placement of a compressor station in Union Hill, Virginia, a “predominately African-American community that has deep ties to the lives of formerly enslaved people.”Footnote 38
It’s not hard to imagine other legal complaints being pursued on behalf of communities of color victimized by municipal and state policies that overwhelmingly concentrate waste disposal facilities, trucking routes, high asphalt-to-greenery ratios, and other accelerators of climate change impacts in their communities. We will likely see further lawsuits by resource-poor residents of places from Bangladesh to Puerto Rico that are especially prone to flooding or face heightened danger from sea level rise and severe weather. An equality lens might also encourage litigation in defense of the protest rights of those who do not command the attention of political leaders or the mainstream media and instead must make their voices heard on the streets. And litigation with an equality focus might give force to the call for reparations that descendants of slaves in the Caribbean have been making from private and state actors for the role of sugar cane, and its slave-based model of production, in causing “deforestation for ranches and … plantations, [causing] the erosion and loss of fertility of our soils and the loss of valuable protective forestry.”Footnote 39
As it evolves, climate litigation will rightly build on many other fields of jurisprudence. Some of it will succeed in the courtroom, while much of it may contribute to change in other ways. But as the movement for racial justice gathers force, an equality lens offers distinctive political, strategic, and jurisprudential advantages that should not be overlooked.
6.1 Introduction
Imagine a Bolivian farmer whose livelihood depends on the continuing flow of a river, without which he cannot water his crops. Due to climate change, glaciers that used to feed local rivers are retreating, leading to a substantial reduction in water availability. After a couple of years, the farmer sees in the local newspaper that a fellow citizen, a concerned industrial farmer, won a constitutional lawsuit against the state of Bolivia for failing to meet its state duty to mitigate CO2 emissions. The court ordered the state to stop producing natural gas as it pollutes the atmosphere and exacerbates the climate crisis. Suddenly, this first lawsuit creates a snowball effect, and people of all ages start to inundate the already cramped and overburdened domestic courts with similar lawsuits. These lawsuits offer a mosaic of legal arguments and are geographically diverse, demonstrating in stark terms how people’s homes are almost uninhabitable due to the effects of the climate crisis.
As a result, the state decides to raise taxes, search for new sources of finance to secure public debt, and intensify mining activities to meet its increasing judicial obligations. Does this approach comport with the tenets of climate justice? Is it fair that a country that only marginally contributed to the climate crisis now has to shoulder it? What options, if any, do courts in developing countries have to provide remedies that also tackle climate justice issues?
This chapter will attempt to address these questions.
6.2 Understanding Climate Litigation in the Global South
As states’ efforts to curb greenhouse gas (GHG) emissions continue to fall short relative to the reductions needed to avoid severe climate risks,Footnote 1 different types of actors are increasingly filing lawsuits before international, regional, and domestic judicial bodies to induce the creation, transformation, and implementation of climate policies.Footnote 2 This area of litigation, which deals with “a wide range of claims with differing degrees of connection to climate change and related issues, such as energy transition, renewable energy use, adaptation policy or climate damage,” is often described as climate litigation.Footnote 3
The Global South is increasingly the subject of burgeoning scholarly attention as scholars seek to understand the development of climate litigation. Recent studies have offered different approaches to understanding how judicial actors invoke, apply, and shape the law in the Global South.Footnote 4 Jackie Peel and Jolene Lin’s chapter on modes of climate litigation in the Global South (Chapter 9), Arpitha Kodiveri’s chapter on Indian climate litigation (Chapter 20), and Waqqas Mir’s chapter on Pakistani climate litigation (Chapter 22) in this volume are such examples. This recent appetite for a more geographically expansive understanding of climate litigation is arguably a reaction to the relatively meagre number of articles discussing this phenomenon. Setzer and Vanhala’s paper − described as the “first to systematically review key literature on climate change litigation” – draws upon 130 articles written between the years 2000 and 2018 to conclude that only 5 percent of the selected papers have a specific focus on issues related to litigation in the Global South.Footnote 5
In a commendable attempt to address this scholarly vacuum, Peel and Lin’s article addresses the contributions of the Global South to transnational climate litigation by identifying common features within the “Global South’s docket” of climate lawsuits.Footnote 6 They found that, quite frequently, cases in the Global South place climate change issues at the “periphery” rather than at the center, a strategy that may be linked to the pursuit of more general environmental concerns that can tangentially embed climate change mitigation.Footnote 7 They hypothesize that this approach is the result of the absence, embryonic stage, or lack of implementation of climate law frameworks, thereby pushing climate cases to draw on other laws that apply only indirectly to climate change.Footnote 8
Another noticeable feature of climate cases in the Global South, according to the foregoing literature, is the consistent presence of constitutional and human rights arguments in both the petitions and the judicial decisions.Footnote 9 This is the result of the significant number of countries in the Global South that have enabling constitutional arrangements for human rights protection and associated institutions to fulfill those rights.Footnote 10 In that regard, these legal opportunity structures continue to be profoundly relevant for human rights victims, who have historically utilized them to advance their agendas through advocacy and litigation before domestic and regional human rights bodies.Footnote 11 Human rights and constitutional and environmental law will likely continue to play a role in a context where climate-induced impacts exacerbate existing vulnerabilities stemming from structural inequalities.Footnote 12
Courts in countries such as Pakistan, Colombia, and South Africa have already yielded landmark decisions that elaborate on the contention that stateFootnote 13 failure to implement mitigation or adaptation policies sufficient to avoid or reduce climate-related harm violates fundamental rights enshrined in constitutions and international human rights treaties.Footnote 14 More generally, climate litigation in the Global South tends to involve the implementation and enforcement of climate-related policies, combined with the application and enforcement of existing and well-established non-climate legislation and jurisprudence.Footnote 15
In many of these cases, courts not only accepted the rights-based arguments of the plaintiffs, they also designed and provided remedies, including injunctions against the defendant state and specific measures aimed at ceasing or preventing the harm at issue.Footnote 16 In cases in Colombia and Pakistan, the defendant states were compelled to create specialized boards, composed of government officials in liaison with civil society organizations, to enforce extant policies through specific action plans targeting climate change concerns.Footnote 17
6.3 Problematizing Remedies in Global South Climate Cases
Though Global South courts might appear to provide comprehensive, proportionate, and context-specific remedies in climate cases, these cases nevertheless reveal a tension between climate justice and litigation outcomes. In short, the problem is that when Global South litigators win cases based on human rights and constitutional law against defendant states, those states then need to offer remedies despite the fact that they did not engender nor substantially further the global climate crisis as major global GHG emitters.Footnote 18 On the contrary, these states are disproportionally impacted by it.Footnote 19 Moreover, these same countries often have saturated judicial systems, which often do not possess the structural capabilities to implement ambitious and comprehensive climate-related remedies.Footnote 20
This remedy conundrum is likely to resurface before international and regional human rights bodies as well, when they decide their first climate case based on human rights law. Granting reparations for climate-related harms is a currently unresolved issue for these bodies, but one that soon might come to fruition. The surge of domestic climate cases and recent jurisprudential developments that address the linkages between environmental harm, climate change, and human rights are becoming parameters that international adjudicative bodies use to inform their decisions. This trend may not only clarify questions related to state responsibility for environmental damage amounting to wrongful acts under international human rights law,Footnote 21 it may also raise questions about whether state responsibility should be calibrated when the defendant state has contributed the least to a multicausal source of harm, like a developing nation in the context of climate change.
The latest decisions by the UN Human Rights Committee are potential harbingers of the harmonization of international law and the calibration of state responsibility. In the Teitiota v. New Zealand case, the applicant did not convince the treaty body that climate change poses an “imminent” risk amounting to a “personal” violation of the right to life. However, the Committee did acknowledge for the first time in an individual complaint that “climate change constitutes extremely serious threats to the ability of both present and future generations to enjoy the right to life.”Footnote 22 To reach its decision, the Committee cited relevant and similar claims from the Inter-American Court of Human Rights and the African Commission on Human and People’s Rights.Footnote 23 This case opened a window of opportunity for future victims of climate change from developing countries, whose chances of success in litigation against a developed country for failing to act on climate change are increasing.
In Portillo Cáceres v. Paraguay, the Committee stressed that states should address environmental pollution as one of the general conditions in society that may give rise to threats to the right to life.Footnote 24 In that vein, the Committee deemed that states are responsible for the violation of the right to life if environmental harm is a “reasonably foreseeable threat” to the right. The Committee enumerated manifold instances in which this threat manifests, including river pollution and previous government reports recognizing the danger agrochemical fumigation poses to human health.Footnote 25 Ultimately, the Committee ordered full reparations for the victims, including adequate compensation and the prevention of similar violations in the future.Footnote 26 In contrast to Teitiota, this case did pass the “reasonably foreseeable threat” test because the evidence was overwhelming, which paves the way for applicants from developing countries to succeed in suing their own states before the Committee on climate change grounds if the test requirements are met.
Eventually, if a climate case follows the steps of Portillo Cáceres v. Paraguay, and it succeeds before an international human rights body, it will most likely follow the seminal restitutio in integrum standard set forth by the Inter-American Court of Human Rights in Velasquez Rodriguez v. Honduras for indemnification for pecuniary and non-pecuniary damages.Footnote 27 The conundrum with this is that these judicial and quasi-judicial bodies might order developing states like Paraguay, which contribute the least to climate change, to compensate victims, the cost of which will ultimately be borne by taxpayers – people who will also suffer the impacts of the climate crisis within the same state.
With this, I am not suggesting that the international community should exempt developing or vulnerable countries from their human rights duties; I am, however, urging consideration of some legitimate climate justice arguments and the problem they raise for remedies in the context of Global South climate litigation. The emerging scientific consensus in the late 1980s around the role of GHG emissions in altering the global climate system raised complex questions of responsibility and justice, including with regard to the huge variations in the contribution and vulnerability to climate change among and within nations. This, in turn, generated discussions on the mismatch between the modest contribution of developing countries to the crisis and the onerous burden of the impacts they must endure, therefore suggesting that industrialized countries are the polluters who must pay for the global environmental damage or at least support those who did not significantly benefit from a carbon-intensive economy.Footnote 28
In light of the above, remedies ordered by domestic courts and international human rights bodies might benefit from addressing the complex and multilayered nature of the climate crisis and its accompanying questions of justice. Some hints of how these questions operate in practice can be found in the international climate regime, which captures a panoply of ethical principles that can shed light on the justice puzzle or at least serve as an orienting reference point. These ethical principles include, for example, the principle of “common but differentiated responsibility” (CBDR) and the values underpinning the inclusion of “loss and damage” mechanisms to compensate developing countries in the event of irreversible climate impacts.Footnote 29 All of these are potential instruments for Global South adjudicators to help them situate localized impacts within a multi-scalar chain of climate change responsibility.
Furthermore, it should be noted that, despite the role that litigation has played as a tool for political change, countries in the Global South are already reducing their heavy reliance on a fossil fuel economy and starting decarbonization programs as a way to reduce their GHG emissions and acquire new forms of energy sovereignty.Footnote 30 This suggests that these countries question their carbon-intensive mode of production because of the likelihood of stranded assets and the human rights and environmental impacts that local communities have historically endured.Footnote 31 This situation may lead climate litigation to be reframed as a way to accelerate this pathway toward decarbonization while guaranteeing that the deployment of renewable energy projects respect human rights.
6.4 Adjudicative Bodies: Ordering States to Engage in International Cooperation?
Those judicial and quasi-judicial bodies, at both the national and international level, that have to determine whether the violation of a right was sufficiently evident to generate responsibility need to engage in and apply interpretive methods aimed at promoting the effective application (effet utile) of the law.Footnote 32 One of these interpretive methods involves looking at the law as a teleological undertaking, whereby judges can instill an updated meaning to a specific state duty by connecting the law’s provisions and principles with the broader societal context and subsequent practice. This thus allows judges to cautiously fill in gaps in the normative realm.Footnote 33
In employing a teleological or purposive method of interpretation, domestic and human rights courts can reinvigorate states’ international obligations to cooperate with each other as a way of ensuring non-repetition of harm.Footnote 34 Recognition that the main structural obstacle to compliance by developing countries with a potential climate-related judgment is the lack of expertise and resources – both financial and technical – serves as the main rationale for this approach. In other words, courts could anticipate a potential non-compliance scenario due to systemic barriers and thus resort to interpretive techniques to design context-specific remedies.
More concretely, courts could establish obligations requiring states to do their best to cooperate with other states or multilateral institutions to protect the rights of their citizens from climate-related harm.Footnote 35 Ultimately, the formulation of a remedy that integrates a duty to cooperate internationally, indirectly addresses climate justice. Indeed, the defendant state could be mandated to perform its best when it comes to finding international assistance and cooperation, particularly with those states that pollute the most or with financial institutions that might provide appropriate funding.
Article 1(1) and (3) of the United Nations CharterFootnote 36 and Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) offer essential doctrinal direction in this regard. The ICESCR, more specifically, lays out the duty of states “to take steps … through international assistance and co-operation, especially economic and technical … with the view to achieving progressively the full realization of … rights.”Footnote 37 In connection with this, the ICESCR’s treaty body specified in its General Comment No. 3 that international cooperation is an obligation of all states,Footnote 38 an approach that resonates with Article 4 of the United Nations Framework Convention on Climate Change (UNFCCC) and Article 12 of the Paris Agreement.Footnote 39
Moreover, adjudicative bodies could invoke these sources of international law as persuasive authority to interpret and inform the remedies they issue. In doing so, they could communicate to states that while they are not exclusively responsible for the drivers of climate change that ultimately lead to human rights violations, they nonetheless have obligations to take all appropriate measures to bridge the resource gap. This entails proactively pursuing cooperation to redress violations and ensure non-repetition. Additionally, judges could also draw from the reporting obligations under Article 13 (10) of the Paris Agreement, particularly with respect to providing information on the support needed for finance, technology transfer, and capacity building.
Notably, UN treaty bodies are already framing the obligation to cooperate in the context of climate change as a human rights duty. For instance, in 2018, the Committee on the Elimination of Discrimination against Women (CEDAW) stressed in its General Recommendation No. 37 on gender in the context of climate change that an “adequate and effective allocation of financial and technical resources for … climate change prevention, mitigation and adaptation must be ensured both through national budgets and by means of international cooperation.”Footnote 40 The same year, CEDAW and the Committee on the Rights of the Child (CRC) published their Concluding Observation on the report of the Marshall Islands and Palau respectively, which nicely capture the very spirit of the envisaged formulation for future remedies. CEDAW recommended that the state “seek international cooperation and assistance, including climate change financing, from other countries, in particular the United States, whose extraterritorial nuclear testing activities have exacerbated the adverse effects of climate change and natural disasters in the State party.”Footnote 41 The CRC used a similar approach.Footnote 42
As trite and redundant as it might seem, it is important to emphasize that the boldness of courts in interpreting state duties and designing remedies cannot wholly replace multilevel climate governance. Undeniably, turning the duty to cooperate into a judicial remedy might reproduce the very same limitations that multilateral negotiations face when fleshing out some of the principles of the climate regime. For instance, contentious cases could mirror, at a smaller scale, how states at multilateral climate negotiations often cannot agree on the details of certain provisions of principles, such as the principle of common but differentiated responsibilities.Footnote 43 However, when courts impose a specific remedy to cooperate, the scope of diplomatic maneuver for states narrows, and what otherwise is a nebulous obligation to cooperate has the potential to become a concrete one, in particular, with judicial follow-up and the imposition of deadlines. Additionally, this model, whereby courts adopt and interpret international cooperation to guide their decisions, may also be applied in Global North jurisdictions, especially if victims from the Global South pursue extraterritorial climate litigation and demand financial contributions, technology transfer, and capacity building.
Another potential drawback is the foreseeable allegation that courts may be acting beyond their mandate, thus encroaching on the role of other branches of government with long-standing legitimacy and authority in matters of cooperation. Nevertheless, most of the time, courts do have the authority to interpret the law to set minimum obligations with an ample margin of discretion that avoids the trias politica, an argument that has been immortalized in the Urgenda v. Netherlands case.Footnote 44 However, assuming that the separation of powers argument hinders a more comprehensive judgment, the judge could order the continuation of the carbon-intensive activity under the condition that high levels of pollution are reduced and compensation is paid for the damage inflicted. The result may be different, and more optimistic, if the case deals with the early stages of a new carbon-intensive project.
6.5 Conclusion
Litigants in the Global South are actively drawing on human rights law to demand more just and more ambitious climate action. Yet the traditional human rights approach to reparations, which enables victims to seek restitution from their own state, requires alteration since developing states are not fully responsible for the adverse effects of climate change. As a result, I have suggested that adjudicative bodies might address this remedy conundrum by integrating international cooperation as an obligation of conduct into their rulings. In so doing, they could instruct states to do their utmost to seek suitable resources, especially from more affluent countries, to protect those human rights threatened or encroached upon by climate change. UN human rights treaty bodies are already delineating such approach, though it could benefit from more granularity.
Global South nations can and should implement mitigation projects and policies that go hand in hand with just transition models, especially from a perspective of restorative and distributive justice. To support the latter in litigation, judges should incorporate considerations of historical responsibility into their deliberations, which would also ideally be incorporated into a specific mandate within their rulings. In light of the global, interdependent, and complex dimensions of climate change, this chapter aimed to highlight the risks that the implementation of climate change response measures, especially if designed without a human rights perspective, pose to the rights of local communities. After all, instituting a production and energy system that does not depend on fossil fuels does not necessarily preclude market abuses, which would inevitably generate negative externalities for local communities. The problem here is that any development model, including the extractivist model, can be framed as a sustainable one, without that being true in practice.
It is also important to underscore that the adoption of mitigation measures through a court order and at the expense of citizens’ budgets is not the real predicament; the challenge, instead, is the prospect of it being done in such a way that reproduces the features of the current extractivist model without any corrective actions. I have proposed in this chapter that it is the role of the judge to formulate alternatives to correct certain distortions of the principles of environmental or climate justice that, in my opinion, is skewed when global and historical dimensions are not part of the formula. If the judge does weigh these dimensions of complexity, it would be most reasonable to interpret the polluter-pays principle in light of the principle of common but differentiated responsibilities. In this way, state responsibility for the climate crisis would include its obligation to seek the necessary means to address the climate crisis without compromising its ability to guarantee the rights of its citizens.
Incorporating the obligation to cooperate with judgments in the Global North is also important, especially in future cases that may arise around extraterritorial obligations. Moreover, given that litigation in the Global South is just beginning to take off, judges from both the Global North and Global South should approach climate litigation from a more holistic perspective. In short, I believe that transferring discussions on general principles of climate law, prevalent at the international level, to the domestic jurisdictions can provide new normative tools to help materialising the Global South’s justice aspirations.
7.1 Introduction
We have a right to practise our culture and to practise it here, in our traditional homeland, where we belong. Our culture has a value to us that no money could ever compensate for. Our culture starts here on the land. It is how we are connected with the land and the sea. You wash away the land and it is like a piece of us you are taking away from us. The impact of climate change on our culture – sea levels rising, coastal erosion, the effect of climate change and coral bleaching on our practices connected with the sea – it is beyond one’s understanding.
Climate change threatens human rights around the world by increasing the frequency and intensity of extreme weather events and through the degradation of the environmental resources on which human populations depend.Footnote 1 For some particularly vulnerable populations, however, climate change represents a critical and immediate threat to both their subsistence and their way of life. Indigenous Australians living on the tiny, remote islands of the Torres Strait are already living with the effects of climate change, with sea level rise literally eroding their cultural heritage and threatening their most basic fundamental human right – their right to enjoy and subsist from their territorial homeland.
This chapter begins by discussing the approach to interpreting and applying human rights law taken in a communication to the Human Rights Committee by a group of Torres Strait Islanders against their home state, Australia. The Islanders allege that by failing to implement sufficient climate change policies, Australia has failed to respect and ensure the protection of their civil and political rights guaranteed by the International Covenant on Civil and Political Rights (ICCPR). Specifically, they allege infringements of the right to life, the right to protection from arbitrary or unlawful interference with privacy, family and home, the rights of the child, and the right of minorities to enjoy and practise their culture (Articles 6, 17, 24, and 27 of the ICCPR).
Although there is growing state,Footnote 2 judicial,Footnote 3 institutional,Footnote 4 and academicFootnote 5 acceptance of states’ responsibilities to guarantee protection from climate change‐related harms under human rights law, there has been more limited discussion of how in practice courts (and other bodies) might approach adjudicating the effectiveness of states’ climate policies. We have therefore sought in this chapter to outline possible approaches that judges and other adjudicators can take in this context, with a focus on certain ‘core’ assessment criteria that should be capable of near-universal application, that is, even in jurisdictions with the strongest separation of the judicial and political branches of the state. Many jurisdictions or fora may well provide scope for more intense and detailed legal scrutiny, but this chapter seeks to explore principles of general application across legal systems.
As we will explain, the task of assessing state action on climate change is aided by the comprehensive system of greenhouse gas accounting and reporting under the United Nations Framework Convention on Climate Change (UNFCCC) and, in particular, by the terms of the 2015 Paris Agreement,Footnote 6 which sets an overarching global temperature goal and requires state signatories to ensure that their emission reduction policies reflect their ‘highest possible ambition’.Footnote 7 We argue that these generally accepted legal, as well as technical and scientific, frameworks give judges and other adjudicators a reliable basis on which to assess a state or public body’s climate policy and compliance with international, regional, or domestic human rights law. In particular, ‘due diligence’ principles and internationally accepted climate change science allow human rights courts and other adjudicators to develop and apply coherent and objective assessment criteria, something that they are well used to doing in relation to other rights violations.
Before turning to these general principles, we discuss a recent case – brought against Australia by a group of Torres Strait Islanders – to illustrate both (i) the wide range of human rights that can be, and are already being, affected by climate change and (ii) how well-established human rights law principles can be used to judge the adequacy of states’ climate policy.
7.2 The Torres Strait Climate Case
On 13 May 2019, eight individuals (formally called ‘authors’) filed a communication under the Optional Protocol to the ICCPR with the United Nations Human Rights Committee (HRC), both on their own and on behalf of six of their minor children. The authors are from four small low-lying island communities (Boigu, Poruma, Masig, and Warraber) in the Torres Strait region, which is a narrow strip of sea between the State of Queensland and Papua New Guinea. Torres Strait Islanders are, together with mainland Aboriginal peoples, recognized as Australian first nations indigenous peoples, with their traditional rights to land ownership recognized by the Australian government and in Australian law.Footnote 8 The authors’ ancestors have inhabited their islands for over 9,000 years, developing a deep spiritual connection to their lands and a rich and vibrant cultural tradition that is still proudly practised today.Footnote 9
The effects of climate change on the authors, their children, and their communities are severe and predicted to worsen. Each of the authors’ home islands are between approximately three and ten metres above sea level, and some are already subject to regular inundation at the highest tides. Expert scientific evidence predicts that the continued viability of each island community will be threatened in the next ten to thirty years, primarily due to sea level rise, which will cause unavoidable saltwater incursion into critical infrastructure, including that related to water supplies and sewerage. Residents currently experience anxiety as inundation and storm surges erode their lands, damaging important cultural heritage sites, such as cemeteries and burial grounds, as well as gardens and homes. Elders also speak with remarkable consistency about the impact of a changing climate on seasonal patterns and traditional ways of life, which are deeply intertwined with the predictable rhythms of weather and the associated cycles of local flora and fauna. Coral bleaching has also affected critical marine resources, such as the fisheries on which islanders depend for subsistence, and the region’s main industry, the tropical rock lobster (panulirus ornatus) fishery. It is also further depleting endangered turtle and dugong populations, which are important animals to Torres Strait Islanders spiritually, culturally, and ceremonially.Footnote 10
All of the authors have provided evidence to the HRC that the degradation of natural sea and land resources is causing an irreparable loss of culture, damaging their sense of dignity and identity as a people, and affecting their ability to pass their culture on to their children. The evidence provided to the HRC describes in detail how damage to biodiversity and the disruption of predictable seasonal patterns affects traditional ecological knowledge, which is the fundamental basis of the authors’ unique culture. Author Keith Pabai of Boigu summarizes the deep connection of the authors to their lands and the interdependency between the people and the natural environment of the islands:
we as a people are so connected to everything around us. The Island is what makes us, it gives us our identity. We know everything about the environment on this island, the land, the sea, the plants, the winds, the stars, the seasons …. Our whole life comes from the island and the nature here, the environment. It is a spiritual connection. We know how to hunt and fish from this island – to survive here. We get that from generations of knowledge that been passed down to us. I know every species of plant, animal, wind on this island, the way the vegetation changes, what to harvest at different times of the year. That is the cultural inheritance we teach our children. It is so important to us, this strong spiritual connection to this island, our homeland.
The authors’ claim is also supported by evidence that erosion due to rising seas and storm surges is impacting cultural heritage, including recent damage to ancient graves and cemeteries, coconut plantations, and other important community sites and resources. The damage to cemeteries and graves is particularly acute and distressing for Torres Strait Islanders, who have cultural obligations to tend to and protect their ancestors’ graves.
Finally, the authors’ evidence also explains how forced displacement and dispossession due to rising seas would cause an irreparable loss of culture and damage to their sense of identity as Indigenous people, expressed by Yessie Mosby of Masig as follows:
our land is the string connecting us to our culture. It ties us to who we are. If we were to have to move we would be like helium balloons disconnected from our culture. Our culture would become extinct. We would be a dying race of people.
Given the severity of the situation, the Torres Strait Regional Authority (TSRA), an Australian government organ based in the region, warns that climate change threatens ‘a looming human rights crisis’ for the Torres Strait.Footnote 11
The authors allege that Australia is obliged under the ICCPR to ensure that their rights are protected by (i) adopting policies and measures that facilitate their safe continued habitation of the islands by protecting their islands from rising seas and other climate impacts (the Adaptation Claim) and (ii) adopting and implementing sufficient national emission reduction policies to address the cause of the issue (the Mitigation Claim).
In relation to the Adaptation Claim, the authors argue that the State party must, at a minimum:
immediately provide AUD $20 million of emergency sea wall funding requested by the Torres Strait Island Regional Council (which was promised by the Australian government on 18 December 2019);Footnote 12
commission a comprehensive and fully costed study of all coastal defence and resilience measures available in respect of each island, with the primary objective being to avoid the communities’ forced displacement from their islands and to minimize erosion and inundation as far as possible; and
implement fully and expeditiously coastal defense and resilience measures based on that study in consultation with the island communities, while monitoring and reviewing the effectiveness of those outcomes and resolving any deficiencies as soon as practicable.Footnote 13
In relation to the Mitigation Claim, they argue that Australia must, at a minimum:
remain a party to the UNFCCC and the Paris Agreement and participate in good faith in the processes and mechanisms established therein, cooperating with other countries in order to achieve the temperature and emissions reduction goals in Articles 2 and 4 of the Paris Agreement;
comply with the terms of the Paris Agreement and accordingly increase its nationally determined contribution (NDC) in 2020 in line with an assessment of all appropriate means available, applying its maximum available resources. In line with the advice of the Australian Climate Change Authority, this should result in an increase from the current target of between 26 and 28 per cent below 2005 levels by 2030 to at least 65 per cent by 2030 and net zero by 2050;Footnote 14
put in place and pursue measures (including laws, policies, and practices) that are sufficient to achieve its NDC (without carrying over credits from the Kyoto Protocol regime);Footnote 15 and
cease all policies actively promoting the use of thermal coal in electricity generation (both domestically and internationally) and phase out all coal mining as soon as possible (taking into account the need for a just transition for coal mining communities).
The communication also includes detailed submission and authoritative expert evidence demonstrating that Australia is a global ‘climate laggard’ when compared to other countries of similar size and wealth. As reflected in the authors’ Mitigation Claim, the claim also relies in part on recommendations made by the Climate Change Authority, an independent statutory authority established to advise the Australian government on climate change policy. In July 2015, ahead of the Conference of the Parties at which the Paris Agreement was reached (and at which the ‘highest possible ambition’ standard was set), the Authority recommended that Australia pursue an emissions reduction target for 2030 of between 45 and 65 per cent below 2005 levels. The Authority concluded that such a target would be both fair and feasible, and ‘no more challenging that the targets many other developed countries have been pursuing’.Footnote 16
The communication argues that in order to meet their human rights obligations under the ICCPR in the context of climate change, states must – at a minimumFootnote 17 – comply with applicable international climate change law, being the UNFCCC and Paris Agreement. The communication argues that these international law regimes should inform the Committee’s interpretation and application of the ICCPR, applying Article 31(3)(c) of the Vienna Convention on the Law of Treaties.Footnote 18 The communication also argues that the Committee’s approach to assessing compliance with the ICCPR should be informed by general norms of international law, including the precautionary principle and due diligence standard. This is in line with the clear guidance provided by the HRC’s General Comment 36 on the Right to Life, finalized in October 2018, which states that:
Environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life. The obligations of States parties under international environmental law should thus inform the content of article 6 of the Covenant, and the obligation of States parties to respect and ensure the right to life should also inform their relevant obligations under international environmental law. Implementation of the obligation to respect and ensure the right to life, and in particular life with dignity, depends, inter alia, on measures taken by States parties to preserve the environment and protect it against harm, pollution and climate change caused by public and private actors. States parties should therefore ensure sustainable use of natural resources, develop and implement substantive environmental standards, conduct environmental impact assessments and consult with relevant States about activities likely to have a significant impact on the environment, provide notification to other States concerned about natural disasters and emergencies and cooperate with them, provide appropriate access to information on environmental hazards and pay due regard to the precautionary approach.Footnote 19
7.3 An Emerging Jurisprudence
While many aspects of the Torres Strait Climate Case are novel, it presents the same fundamental question to the adjudicating body as any other climate case against a state: is there a standard that is amenable to legal analysis and judicial enforcement by which the state’s conduct can be judged? Alongside a dramatic increase in the number of climate-related cases and decisions in recent years,Footnote 20 a common approach to this question has started to emerge through a series of prominent decisions, each finding that such a standard does exist. However, it is also the case that some courts continue to take a starkly contrasting view, as exemplified by a recent North American judgment.
In Juliana v. United States, a group of young people brought a challenge against the US federal government under the US Constitution, including in respect of their rights to life, liberty, and property. The plaintiffs sought (inter alia) an injunction requiring the US federal government to:
prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.Footnote 21
The majority of the United States Federal Ninth Circuit Court decided that the plaintiffs did not have standing on the basis that their claims were not amenable to resolution by the courts. They found that although ‘there is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change’, it was beyond the power of the federal court to order the production of such a remedial plan. The judges found that the plan would ‘necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches’.Footnote 22 The minority judge, District Judge Staton, disagreed with this conclusion. She found that the ‘Constitution does not condone the Nation’s wilful destruction’ and that ‘a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief’.Footnote 23
In Urgenda Foundation v. Netherlands,Footnote 24 the Supreme Court of the Netherlands considered Urgenda’s request for a slightly different remedy – a minimum level of emission reductions across the Dutch economy by a given dateFootnote 25 – and rejected the state’s argument that this would wrongly infringe on the state’s margin of discretion and power to legislate.Footnote 26 In determining the Dutch state’s compliance with Articles 2 and 8 of the European Convention on Human Rights (ECHR), the Dutch Supreme Court found that judges can define the concept of a ‘minimum fair share’ of emission reductions, ‘in accordance with the widely supported view of states and international organizations, which view is also based on the insights of climate science’. Applying the jurisprudence of the European Court of Human Rights and the requirement to observe due diligence and pursue good governance, the Dutch Supreme Court considered that the question was ‘whether there are sufficient objective grounds from which a concrete standard can be derived in the case in question’. And whilst the Court noted that courts must observe restraint in such cases, the state ‘must properly substantiate that the policy it pursues meets the requirements to be imposed’.Footnote 27
A similar view was also recently taken by the Norwegian courts in a case brought under Article 112 of the Norwegian ConstitutionFootnote 28 by the NGOs Nature and Youth and Greenpeace Nordic. The claimants argued that the issuing of various oil and gas production licences in the Barents Sea infringed human rights protected by the Norwegian Constitution and the ECHR due to the climate change impacts of the related oil and gas extraction.Footnote 29 The Norwegian Court of Appeal found that it was able to set limits on political action when the matter involves protecting constitutionally established values, with the question being the measure of discretion allowed to the authorities or ‘where the threshold for review lies’.Footnote 30 Importantly, although the court declined to grant the claimants relief, it found that the Paris Agreement could ‘contribute to clarifying what is an acceptable tolerance limit and appropriate measures’Footnote 31 for state action to protect the environment. The court also found that the impacts of ‘downstream’ emissions generated extra-territorially (outside of Norway) from the combustion of Norwegian oil and gas would need to be considered at a later stage by the government under the environmental assessment regulations and Article 112 of the Norwegian Constitution, including with respect to the rights of future generations. The Court of Appeal’s decision was subsequently upheld by the Supreme Court, albeit with a dissenting minority of the court finding that the government’s failure to assess the climate impacts of downstream emissions did amount to a breach of environmental assessment regulations, read in conjunction with Article 112.Footnote 32
In Friends of the Irish Environment v. Ireland, the Irish Supreme Court quashed the Irish government’s National Mitigation Plan on the basis that it failed to comply with the requirements of the governing legislation, the Climate Action and Low Carbon Development Act 2015. And while the court found that the claimant did not have standing to pursue claims under the ECHR or the Irish Constitution, it expressly affirmed the court’s role in reviewing even complex areas of government policy where such policies may infringe rights:
It is again important to reiterate that questions of general policy do not fall within the remit of the courts under the separation of powers. However, if an individual with standing to assert personal rights can establish that those rights have been breached in a particular way (or, indeed, that the Constitution is not being complied with in some matter that affects every citizen equally as occurred in Crotty v An Taoiseach [1987] I.R. 713), then the Court can and must act to vindicate such rights and uphold the Constitution. That will be so even if an assessment of whether rights have been breached or constitutional obligations not met may involve complex matters which can also involve policy. Constitutional rights and obligations and matters of policy do not fall into hermetically sealed boxes. There are undoubtedly matters which can clearly be assigned to one or other. However, there are also matters which may involve policy, but where that policy has been incorporated into law or may arguably impinge rights guaranteed under the Constitution, where the courts do have a role.Footnote 33
More recently, the German Constitutional Court issued its judgment in Neubauer, et al. v. Germany, in which the claimants challenged the lawfulness of the German government’s emission reduction commitments. The Court held that the Federal Climate Change Act violated the German Constitution (or ‘Basic Law’) by failing to ensure that the fundamental freedoms of future generations were not disproportionately affected. This interference on the rights of future generations was held to stem from a failure to initiate and plan for emissions reductions in good time, and specifically by failing to provide for emissions reduction targets covering the period from 2031:
Art. 20a of the Basic Law obliges the state to take climate action. This includes the aim of achieving climate neutrality. …
Art. 20a of the Basic Law is a justiciable legal provision designed to commit the political process to a favouring of ecological interests, partly with a view to future generations.
Compatibility with Art. 20a of the Basic Law is required in order to justify under constitutional law any state interference with fundamental rights.
Under certain conditions, the Basic Law imposes an obligation to safeguard fundamental freedom over time and to spread the opportunities associated with freedom proportionately across generations. In their subjective dimension, fundamental rights – as intertemporal guarantees of freedom – afford protection against the greenhouse gas reduction burdens imposed by Art. 20a of the Basic Law being unilaterally offloaded onto the future. Furthermore, in its objective dimension, the protection mandate laid down in Art. 20a of the Basic Law encompasses the necessity to treat the natural foundations of life with such care and to leave them in such condition that future generations who wish to carry on preserving these foundations are not forced to engage in radical abstinence. Respecting future freedom also requires initiating the transition to climate neutrality in good time. In practical terms, this means that transparent specifications for the further course of greenhouse gas reduction must be formulated at an early stage, providing orientation for the required development and implementation processes and conveying a sufficient degree of developmental urgency and planning certainty.Footnote 34
Despite this series of high-profile decisions that have recognized courts’ ability to assess the lawfulness of climate policy, there remains a possibility that other courts and adjudicators will follow the approach taken by the Federal Ninth Circuit in Juliana for fear of overstepping their remit. Accordingly, as constitutional and human rights courts and adjudicators around the world are asked to adjudicate more and more frequently states’ emissions reduction policies,Footnote 35 we have sought to show in the remainder of this chapter how even the most conservative of courts can proceed to decide such cases, irrespective of the potential novelty of the claims’ subject matter. Indeed, as we set out in Section 7.4, there are a range of well-established judicial tools that can be used to adjudicate these potentially novel and complex issues. These are based on, or consistent with, existing international and human rights law, including the concept of due diligence.
7.4 Core Assessment Principles
As discussed above, the obligations contained in the Paris Agreement can act as a helpful guide to the minimum standard expected of states in respect of their climate mitigation policy.Footnote 36 This does not mean that ‘compliance’ with the Paris Agreement simply substitutes for compliance with a state’s human rights obligations – rather that existing principles and legal commitments made by states can assist in assessing whether a state’s conduct has infringed the human rights of individuals.
The Agreement has been called a ‘hybrid’ agreement of both top-down and bottom-up governance,Footnote 37 with states determining their own NDCs within the constraint that their contributions must:
(i) ‘represent a progression’ over time (the principle of upward only progression or non-regression)Footnote 38; and
(ii) reflect a party’s ‘highest possible ambition’.Footnote 39
‘Highest possible ambition’ means that states must assess their capacity to reduce emissions to the maximum extent possible, which can be equated to the ‘due diligence’ and ‘best efforts’ standards in international law. As Christina Voigt explains:
It implies that every State ought to act according to its best capabilities, or ‘to do as well as they can’. In other words, every State is required to exert its best possible efforts and to take all appropriate measures to holding the increase in temperatures well below 2˚C.Footnote 40
The requirement to take ‘all appropriate measures’ also exists in international human rights law. In the recent case of Portillo Cáceres and others v. Paraguay, for example, the Human Rights Committee held that:
States parties should take all appropriate measures to address the general conditions in society that may give rise to threats to the right to life or prevent individuals from enjoying their right to life with dignity, and these conditions include environmental pollution.Footnote 41
These requirements are also similar to states’ obligations in international human rights law to devote their ‘maximum available resources’ to avoiding the violation of rights.Footnote 42 In particular, under Article 2(1) of the Covenant on Economic, Social and Cultural Rights, states must take ‘deliberate, concrete and targeted measures, making the most efficient use of available resources, to move as expeditiously and effectively as possible towards the full realization of rights’.Footnote 43 The way that this provision has been interpreted by human rights courts and treaty body committees is also instructive. In assessing compliance with this obligation, courts and treaty body committees have established the concept of a ‘minimum core obligation’,Footnote 44 against which it is possible to identify instances of non-compliance objectively while respecting a state’s margin of appreciation and discretion. Indeed, the minimum core obligation can be seen as analogous to the concept of ‘minimum fair share’ developed by the Supreme Court of the Netherlands and the concept of the ‘threshold for review’ developed by the Norwegian Court of Appeal.Footnote 45 We suggest that similar approaches can be developed and adopted by decision-makers in other climate change cases.
There are several principles that human rights courts and other adjudicators could apply in order to identify a state’s ‘minimum’ or ‘core’ obligations, by reference both to the scientific literature identified above and the factual circumstances of each case. Relevant principles include:
(a) Consistency (i.e., with approaches and measures taken by comparably resourced states as well as internally between policies);
(b) Proportionality (i.e., of the state’s measures in view of the gravity of the risk and harm);
(c) Due process (i.e., public participation, adequate reason-giving and justification, taking into account all material issues); and
(d) Good faith and effective participation in, and implementation of, relevant international processes.
In applying this approach in the context of a state’s climate policy, courts and other human rights decision-makers may find that the following are relevant considerations by which states’ compliance can be judged:
(a) Whether a state has participated in and complied with agreed international environmental law on climate change (i.e., the UNFCCC and Paris Agreement), effectively and in good faith, including by implementing commitments made in its NDC.Footnote 46
(b) Whether a state has submitted an NDC that is consistent with the due diligence standard of ‘highest possible ambition’Footnote 47 and complies with all other terms of the Paris Agreement, including Article 4(4), which requires developed country parties to have economy-wide emissions reduction targets. And in so doing, whether a state has taken proper account of its technical and economic capability, including:
(i) whether the state’s analysis aimed to match or better the measures and targets of the most ambitious comparable states;
(ii) whether modelling and other analysis conducted by the state included the costs of climate change impacts, as well as the economic, public health, and other benefits of transitioning to a low-carbon economy;
(iii) whether target setting has been conducted transparently, with public participation, to allow all possible options and measures to be considered; and
(iv) whether the state has justified any failure to align its policies with higher ambition states on capacity-based grounds that are rational and supported by sound evidence.
The Annex below includes a set of more specific criteria that could be relevant to assessing whether a state has met its due diligence obligation and complied with the principles set out above. We suggest that in order to meet their human rights obligations in the context of climate change, states must – at a minimum – comply with applicable international law (i.e., the UNFCCC and the Paris Agreement), as well as the ‘no harm’ and precautionary principles and due diligence standard in international environmental law, assessed by reference to these kinds of objective criteria. This task may involve the consideration of complex economic and scientific issues, but the application of the legal principles is firmly within the competence of courts and other human rights adjudicators.
In this chapter, we have tried to illustrate how national climate policy can be adjudicated in a way that may have great practical and environmental impact, while also staying well clear of judgements that might be said to fall within a state’s discretion. The types of objective criteria that can be applied are frequently used by human rights adjudicators and stay well with the terrain of legal analysis and away from questions of political judgement. They provide a framework with which judges and other adjudicators can safely and confidently assess the lawfulness of climate and energy policies, while seeking to ensure the protection of fundamental rights in the context of one of this century’s defining challenges.
How much does an individual state have to do reduce emissions within its jurisdiction and by when? This is one of the most challenging questions raised by climate litigation, and it is difficult for tribunals to address, as they are often concerned by the prospect of straying beyond their legal function into policymaking. However, this debate is essential; without it, there can’t be an effective remedy for affected complainants or a way to hold states accountable for their obligations through litigation. What, therefore, are the criteria by which a tribunal can objectively assess the adequacy of states’ efforts to reduce emissions?
This chapter proposes five tests, building on the practice of the UN Committee on Economic, Social and Cultural Rights (CESCR), for such an assessment. Among international human rights treaty bodies, the CESCR has had to grapple the most with the question of the progressive realization of rights, rather than more binary questions of law, and thus has developed useful guidance in this sphere. A sixth test addresses the ‘how’ question, rather than ‘how much or how fast’ and, more specifically, whether the measures proposed are themselves rights-respecting.
These tests should be examined separately as well as cumulatively. They are designed to apply state obligations set out under the International Covenant on Economic, Social and Cultural Rights (ICESCR) and may be applicable to other national or international standards that explicitly or implicitly require states to reduce carbon emissions.
They can therefore be used in periodic monitoring by the CESCR and for complaints brought under the Optional Protocol to the ICESCR and could also potentially be used in other national or international courts or accountability mechanisms, if and to the extent that the relevant applicable standards contain similar obligations to reduce emissions. To be clear, these tests may not be useful in certain jurisdictions, beyond simply assisting litigators in their scoping of relevant legal arguments.
Before setting out the tests, I will touch on the legal basis for obligations to reduce emissions. Under international human rights law, states have obligations to protect the enjoyment of human rights from harm (within their borders and in other countries) caused by conduct or omissions within their territory or jurisdiction, whether committed by state or non-state actors, including businesses.Footnote 1 According to CESCR, ‘a failure to prevent foreseeable human rights harm caused by climate change, or a failure to mobilize the maximum available resources in an effort to do so, could constitute a breach of this obligation’.Footnote 2 It has further indicated that, as a matter of obligation, states’ nationally determined contributions (NDCs) ‘should be revised to better reflect the “highest possible ambition” referred to in the Paris Agreement (article 4.3)’.Footnote 3 The following six tests will speak to assessing whether the highest possible ambition has been achieved and whether a state has taken sufficient and adequate steps to prevent greenhouse gas emissions.
8.1 Test One: Has Every Feasible Step to Reduce Emissions Been Taken?
This test assesses whether a state has taken – or is taking – all of the rights-respecting steps that it can to reduce and eliminate carbon emissions in the present, whether through introducing alternative clean energy or by reducing the extent of activities that yield emissions. Its NDC would need to propose a clear plan to phase out all forms of these emissions from its jurisdiction and all possible ways it can take steps within its jurisdiction to remove carbon from the atmosphere, including by preventing deforestation and ensuring afforestation, within the shortest time frame possible. As part of this obligation, high-income states must take all feasible steps to cooperate with and provide assistance to developing countries to help them reduce emissions.Footnote 4
With this, an immediate question arises: what level of resources and other costs is a state required to expend in order to meet the above obligations? Whilst a state is obliged to ensure adequate priority to the realization of human rights in its resource allocation, CESCR has clarified that a state should be accorded a ‘margin of appreciation’ to determine the optimal use of its resources in how it meets its rights obligations.Footnote 5 CESCR has described some of the considerations that it would use to determine whether steps taken by states are adequate or reasonable. These include:
The extent to which the measures taken were deliberate, concrete and targeted towards the fulfilment of economic, social and cultural rights … whether the State party exercised its discretion in a non-discriminatory and non-arbitrary manner … where several policy options are available, whether the State party adopts the option that least restricts Covenant rights … whether the steps had taken into account the precarious situation of disadvantage and marginalized individuals and groups and … whether they prioritized grave situations or situations of risk.Footnote 6
These criteria can be used to review individual resource allocation decisions. The second and third tests, discussed below, also can address resource challenges.
A state may argue that the necessary technology is not yet available to mitigate emissions, for example, emissions from air travel, fully. Where a high-income state makes such an argument, it would need to show that it has taken all feasible steps to help develop such technology, including funding research and development and ensuring that pricing and tax policies create an incentive for the development of such technology.
The question that next arises is whether a state has taken steps to prevent activities that lead to emissions where a switch to clean energy cannot end such emissions. A case can be made that a state should phase out ‘luxury emissions’ or ‘convenience emissions’, permitting only those that are strictly necessary to realize human rights (in a manner that is proportionate to the impact of the emissions on the rights of others) and other essential public goods and services.Footnote 7 Examples may include frequent air travel for reasons other than, for example, family reunification or migration. Furthermore, where emissions may be needed to realize human rights such as the right to an adequate standard of living and work (and this would be the majority of them, even in cases such as tourism), states would need to ensure that such emissions are necessary and proportionate to the impact that they have on the rights of affected people. The state bears the burden of proving that there are no other feasible alternatives to permitting such emissions and that it is taking steps to phase out such emissions as quickly as possible. A state could not justify permitting harm to the minimum essential realization of rights of persons in another state in order to secure economic, social, and cultural (ESC) rights above the minimum essential realization of ESC rights and preferences of persons within its territory. In most cases, such emissions could only be justified as a transitional measure, permissible due to the potential economic harm and corresponding negative impact on the minimum essential realization of rights that would result from the immediate cessation of emissions as opposed to the phasing out of such emissions with appropriate just transition measures.
One part of the feasibility test is assessing whether pledges made within the NDC have been met. A pledge can be seen as at least setting out some of the reasonable steps that a government can take. If the given government has not met a pledge, it would be its burden to demonstrate that it was unable to do so for reasons beyond its control, such as the COVID-19 pandemic or its population’s failure to reduce food waste and set out steps it will take to overcome these challenges. Needless to say, meeting a pledge does not, by itself, demonstrate compliance with state obligations.
8.2 Test Two: Is the State Subsidizing Emissions, Disproportionately Allocating Resources to Non-public Benefit Costs, or Failing to Mobilize Resources?
A state’s overall resource use can be reviewed to determine whether it demonstrates that adequate priority has been given to the realization of human rights, including whether it has devoted sufficient spending to climate measures (or to addressing its claim that it has insufficient resources to phase out emissions in the short-term). CESCR has noted with concern circumstances in which a state has allocated significantly more funds to areas unrelated to ESC rights or that do not target the realization of ESC rights as compared to ICESCR objectives. For example, such a situation may arise when more funding is dedicated to military defence compared to health or education, to the development of the oil industry (in contexts where these would benefit only a small number of workers) compared to the small- and medium-scale enterprises needed to ensure the livelihoods of major segments of the population and to ornamental public works compared to housing projects.Footnote 8
It could also be suggested that any use of resources for purposes that do not provide reasonable public benefit constitutes a failure to use available resources for the realization of the ICESCR. An example would be the procurement of goods and services at inflated prices, whether through officially sanctioned high-level corruption or through poor price management. Similarly, subsidizing or funding fossil fuels, and thereby contributing to an increase in emissions, implies a violation of state obligations, except potentially where such subsidies are a strictly temporary transitional measure to ensure affordable access to energy as alternative clean energy supplies are being put into place. Relatedly, a failure to mobilize resources (through overall low and regressive levels of taxation compared to peer states or a high level of tax exemptions for private parties that are not justified by any public policy measure) could demonstrate a failure to utilize available resources.
8.3 Test Three: Is the Climate Plan Reasonably Ambitious in Comparison to Peer States?
This test allows a tribunal to apply tests one and two above while taking into consideration conditions in peer states – that is, states that have broadly similar levels of wealth and access to other relevant resources, such as natural resources like wave power or consistent solar power. This test would apply a method used by CESCR to assess territorial obligations to fulfil ESC rights, according to which it compares the proportion of a country’s budget spent on a particular sector, such as health and education, against corresponding amounts spent by states at the same level of development. Where the percentage of the national budget is considerably lower than that of other states at a similar level of development, it is treated by CESCR as indicative of the non-use of the maximum of available resources.Footnote 9 Budgetary spending is of course only one measure of whether a state has taken adequate steps – the standards that it adopts are also critical – and indeed may reduce the extent of public finances required. For example, a state that institutes robust standards for energy efficiency and the use of non-fossil fuel energy sources in housebuilding will thereby reduce the eventual amount of public finance required to subsidise energy efficiency and installation of electric heating and cooling in houses.
Applying CESCR’s practice by analogy in assessing whether a state has met its obligation to reduce emissions to the greatest extent possible, a state should be given a narrow margin of appreciation when it fails to take steps carried out by the majority of its peers or – with respect to quantifiable steps – in comparison to the average performance of its peers, unless it can offer a reasonable explanation for the difference in performance. A state can also be compared to those peer states (taking into account relevant differences, such as GDP per capita and geographic conditions that facilitate the use of renewable energy such as wind and solar) that are the best performing with respect to climate change; states can then be required to provide evidence that they cannot take steps comparable to those best performers.
8.4 Test Four: Has There Been a Progressive Increase in Ambition and Avoidance of Any Retrogression?
This test would assess whether a state has progressively increased steps to mitigate climate change and avoided retrogressive steps without cause. Such a criterion is used in the context of the territorial fulfilment of ESC rights, where CESCR expects states to enhance the enjoyment of ESC rights territorially as their economic situations improve.Footnote 10 As there is a presumption that any retrogressive step is contrary to the ICESCR, after the state takes a retrogressive step, the burden shifts to a state to show that it has fully used available resources.Footnote 11 In addition, such retrogressive steps require reasonable justification; the comprehensive examination of alternatives; genuine participation by affected groups in the examination of the proposed measures; refraining from direct or indirect discrimination; no sustained, unreasonable impact on economic, social and cultural rights; and no deprivation of the minimum essential realization of the rights for any individual or group, whilst also including independent review of the measures at the national level.Footnote 12
CESCR has further stated that where a state explains and seeks to justify retrogressions due to resource constraints, it will assess such explanations by taking into account, inter alia, the country’s level of development, its economic situation, and the extent to which it had sought or rejected international assistance.Footnote 13
8.5 Test Five: Is the State Planning to Reduce Emissions in Line with Keeping the Global Temperature Below 1.5 degrees Celsius?
While the four tests above are contextual and mostly qualitative, this test provides a specific numeric target, though it, as discussed below, must be applied with reference to points one through four above. Although states have not committed to collectively limiting the temperature rise to 1.5 degrees Celsius (only to pursuing efforts to that end), CESCR has nonetheless indicated that states should treat a global temperature rise of 1.5 degrees Celsius above pre-industrial temperatures as ‘a limit’.Footnote 14 This is a justified reading of the ICESCR given that the impact of a 1.5 degrees Celsius rise in temperature, as compared to 2 degrees Celsius, would have far less devastating consequences for human health, livelihoods, food security, and water supply.Footnote 15 For example, around 420 million fewer people would be frequently exposed to extreme heatwaves at a temperature increase of 1.5 degrees Celsius, compared to 2 degrees Celsius.Footnote 16 With global warming of 2 degrees Celsius, more than one billion people could suffer from a severe reduction in water resources.Footnote 17 Limiting this rise to (at the very least) 1.5 degrees Celsius could reduce the number of people exposed to climate-induced water stress by 50 per cent, compared to those exposed at two degrees Celsius of warming.Footnote 18
Limiting the increase in temperature to 1.5 degrees Celsius would require the reduction of emissions on an accelerated time frame and scale. The IPCC has shown that it is feasible for states to do this by collectively reducing greenhouse gases by 45 per cent globally from 2010 levels by 2030 and to net zero by 2050.Footnote 19 This implies that global emissions must be cut by 7.6 per cent per year until 2030.Footnote 20
The IPCC did not provide a breakdown of how fast individual states should reduce emissions to net zero, and, thus, the only questions here are the extent to which the 2030 target reductions of 45 per cent must be distributed among states and which countries, if any, could legally emit net carbon in 2050. However, on the basis of human rights standards and the principle of common but differentiated responsibilities, it would be unreasonable and unrealistic to expect that developing countries make this transition at the same pace as developed countries. Developed countries emit approximately one-third of global emissions.Footnote 21 Even if developed countries were to reach zero carbon emissions by 2030, in order to meet the IPCC targets, developing countries would need to reduce their emissions by at least one-third below 2010 levels by 2030 – a deeply difficult task, for which many will require significant financial assistance and technical cooperation.
Looking at the global picture, tribunals should therefore ask developed countries for strong justifications for their failures to put in place plans to achieve carbon emissions that are as close as possible to zero by 2030. Thus, the considerations listed in tests one through four apply to this test as well; however, the tribunal would need to stipulate that the burden of proof rests on the state to demonstrate that it cannot meet this target and that the necessity and proportionality tests will be applied strictly, given the scope of the human rights harms caused by failing to limit global warming to 1.5 degrees Celsius.
Tribunals should also assess the extent to which such countries are planning to introduce ‘negative emissions’, in a way that does not have negative human rights consequences, to make up for the inability of low-income countries to reduce emissions as quickly as needed.Footnote 22 With regard to developing countries, tribunals should also hold them accountable for any failures to plan to reduce emissions by 45 per cent from 2010 levels by 2030, taking into account the relevant capacities they have. For example, China would be expected to achieve a reduction much faster than Fiji. Tribunals, when dealing with low-income countries, should also consider whether they sought international assistance to achieve such an emission reduction.
8.6 Test Six: Is the Manner in Which Emissions Are Being Limited Consistent with Human Rights Standards?
It should go without saying that emission reductions must be carried out in a manner consistent with human rights, including, for example, the obligation of non-discrimination and the obligation to refrain from harming human rights, like the right to an adequate standard of living and the rights of Indigenous peoples. Carbon taxes, for example, should be designed in a manner that does not prevent low-income people from being able to heat their homes, thus undermining their right to adequate housing. Indigenous people should not be denied their right to enjoy their ancestral lands and territories on the basis of climate mitigation. This test both stands alone and intersects with the others. This requirement for human rights consistency helps preclude purported alternatives to the rapid phase-out of fossil fuels. For example, one possible state argument against the obligation to speedily reduce emissions is the assertion that emissions can be reduced through new technologies, such as bioenergy with carbon capture and storage (BECSS). Such arguments can be rebutted on the basis that these technologies would have very substantially negative consequences on the enjoyment of human rights by requiring the use of large areas of agricultural land, thereby reducing access to food and likely resulting in forced evictions.
Furthermore, all policymaking relating to emissions reduction should take into account the full range of state human rights obligations, not just the obligation to prevent harm to human rights. For example, in regulating and subsidizing the renewable energy industry, states should give effect to obligations to ensure, for example, just and favourable conditions of work as the industry grows.
8.7 Conclusion
This chapter has discussed and set out six tests that can be used by tribunals to assess whether states have taken sufficient steps to reduce emissions within their jurisdictions. The first test: has every feasible human-rights consistent step been taken by the state to reduce emissions? The second: is the state subsidizing emissions, disproportionately allocating resources to non-public benefit costs, or failing to mobilize resources? The third: is the climate plan reasonably ambitious in comparison to peer states? The fourth: has there been a progressive increase in ambition and avoidance of any retrogression? The fifth: is the state planning to reduce emissions in line with limiting the global temperature increase to 1.5 degrees Celsius? And the sixth and final test: is the manner in which emissions are being limited consistent with human rights standards?
These tests are stringent and may be contested by states and those sceptical of rapid climate action on the basis that no state could pass all or even most of these tests. Yet these tests reflect the standards that are contained in human rights law, which can, by definition, never be said to be fully realized, as they explicitly aim towards the ‘continuous improvement of living conditions’. Equally, some climate activists may think that these tests give states far too much leeway to argue that they cannot carry out the actions required to preserve a safe climate. Such leeway may delay or drag out proceedings and potentially result in tribunal decisions that do not contain robust, monitorable targets. These are indeed dangers. But they reflect the standards that are contained in human rights law, which allow states significant leeway in the implementation of their obligations; this is thus a limit to what can be achieved through litigation alone. Only new binding international or national standards can fully fix this defect. Litigation that achieves partial successes in at least in some jurisdictions will increase the political incentive for states to advocate for or accept such standards.
Not all of these tests will be useful in all climate litigation. Some are plainly easier to monitor and apply than others. Only experience in the coming decades can tell us which will be most impactful practically. Yet, if there is one thing that can be said with total confidence, it is that, given the scale of the climate crisis and the extent to which jurists around the world are throwing themselves into this challenge, the field of climate litigation as a field is well-positioned to consider every possible argument. My hope is that this chapter will be of some use towards that end.
9.1 Introduction
Over the last twenty years, climate litigation has grown from a handful of cases to become a global phenomenon, casting courts as significant actors in global climate governance.Footnote 1 Whereas climate litigation began to emerge in the Global North in the 1990s, climate litigation in the Global South started almost twenty years later and has gained visibility only in the past few years. The vast majority of climate litigation scholarship focuses on court actions in the Global North and typically on a small number of high-profile cases in the United States, Europe, and Australia. However, we are beginning to see a growing body of scholarship that is focused on Global South litigation.Footnote 2
This is a promising development. This analysis of the Global South experience of climate litigation is essential if transnational climate jurisprudence is to contribute meaningfully to global climate governance and, particularly, to ensuring that governments are held to account for the commitments they have made pursuant to the Paris Agreement.Footnote 3 Moreover, a richer understanding of transnational climate litigation – one that takes developments in the Global South into account – underscores that judicial contributions to global climate governance are not a purely Global North phenomenon. A number of courts in the Global South are taking bold steps and crafting innovative approaches to compel action on climate change, oftentimes drawing on human rights norms and frames. For additional context on climate litigation in specific Global South countries, see Julia Mello Neiva and Gabriel Antonio Silveira Mantelli’s chapter on Brazilian climate litigation (Chapter 19), Waqqas Mir’s chapter on Pakistani climate litigation (Chapter 22), and Arpitha Kodiveri’s chapter on Indian climate litigation (Chapter 20) in this volume.
We engage in the dialogue proposed in this collective volume by filling a lacuna in our developing understanding of Global South climate litigation concerning how such litigation emerges. In this regard, our focus is the different, prototypical modes of legal action in the Global South and how they are shaped by particular actors, including local activists, global non-profit foundations, and lawyers. We propose a theoretical framework to explain these modes and their implications for the emergence of climate litigation in the Global South. Our hope is that this model will provide valuable insights for both scholars and practitioners on the key drivers that make climate litigation more or less likely, as well as the conditions that support or obstruct the emergence of climate litigation.
The remainder of the chapter is structured as follows. Section 9.2 begins by elaborating our understanding of climate litigation, which eschews a narrow focus on lawsuits where climate change issues are central or “at the core” of the case in favor of a broader understanding. It then proceeds to sketch the key characteristics of climate cases in the Global South – derived from our article published recently in the American Journal of International Law – as a basis for developing our framework of modes of climate litigation in the Global South.Footnote 4 In line with the goals of this volume, we include an analysis of the role of rights-based litigation in the Global South.
Section 9.3 focuses on this framework. We posit that there are five dominant modes of climate litigation in the Global South, which we have labeled “the grassroots activist,” “the hero litigator,” “the farmer,” “the enforcer,” and “the engineer” respectively. These are all proactive modes of litigation; however, there are also some, still-limited examples of anti-regulatory litigation in the Global South. In Section 9.4, we conclude with observations on future research directions that can be taken to continue to build our collective knowledge of climate litigation in the Global South.
9.2 An Overview of the Global South Climate Docket
There has been a proliferation of scholarly efforts to define and classify climate litigation.Footnote 5 What is notable is that the most commonly applied definitions of climate litigation all share a focus on “core” cases where climate change “is a central issue in the litigation.”Footnote 6 As a result, most of the scholarship on climate litigation in the Global North tends to be about high-profile mitigation cases, such as the US Supreme Court decision in Massachusetts v. Environmental Protection Agency (EPA) or the recent judgment of the Dutch Supreme Court in the Urgenda case.Footnote 7
By contrast, other types of cases receive minimal coverage. For instance, there is very little scholarship on adaptation cases as opposed to mitigation-focused ones, partly because the former tend to be lower-profile, smaller scale, and have more diffuse causal connections with climate policy.Footnote 8 This has led to calls for a broader conceptualization of climate litigation that includes, for example, cases at sub-national levels of governance and cases where climate change issues are less “visible” and the interface with domestic climate policy happens “inadvertently.”Footnote 9
Similarly, we find that there is relatively little scholarly attention paid to climate litigation in the Global South. This is because the dominant definitions of climate litigation often do not capture these cases, which are “invisible” or fly below the radar because climate change tends to lie at the “periphery” rather than at the “core” of the litigation. We have argued elsewhere that this failure to capture developments in the Global South is problematic and that attention to the types of climate cases emerging in the Global South is helpful to promote a reframing of our understanding of climate litigation. This understanding can, in turn, inform advocacy, partnering initiatives, and capacity-building efforts designed to foster more robust climate governance in the Global South, which is essential for the achievement of the global mitigation and adaptation goals articulated in the Paris Agreement.Footnote 10
Thus, in our work on climate litigation in the Global South, we are looking beyond “core” cases to include “peripheral” cases where climate issues are subsidiary to other arguments (e.g., contravention of natural resource management laws) or one of a number of arguments or issues raised in a dispute. In applying this understanding to the case law review, we consider a case to be part of the “Global South docket” when it engages directly or indirectly with climate change in the pleadings, judgment, campaign materials, or the media publicity. A case is excluded if climate change issues are mentioned incidentally or in passing but not otherwise considered in a meaningful way.
For example, the case law review has identified several cases about projects with potential environmental impacts, such as large infrastructure developments or natural resource activities, in which the court mentions climate change as one of the several environmental concerns at stake but does not consider it further in any meaningful way.Footnote 11 Such cases are not included in the “Global South docket,” although we note these cases with interest as they suggest that petitioners and judges in future similar cases may begin to engage with climate change issues in a more sophisticated way.Footnote 12
Based on our recent survey, we have identified three key characteristics of climate cases in the Global South. These characteristics can also be found in the Global North jurisprudence but are less pronounced. We therefore view these characteristics to be on a spectrum, with Global South cases presently concentrated at one end and Global North cases at the other end.Footnote 13 Furthermore, these key characteristics do not apply across every jurisdiction in the Global South, which is a large grouping of countries with contrasting socioeconomic conditions and political systems. Nonetheless, these characteristics are shared widely enough in the Global South case law for us to consider them as notable features that distinguish climate litigation in the Global South from that in the Global North.
9.2.1 The Prevalence of Rights-Based Claims
A significant number of Global South climate cases, such as the high-profile Leghari v. PakistanFootnote 14 case and the Colombian Youths case,Footnote 15 rely on constitutional rights or human rights, including alleged violations of the rights to life and/or a clean environment.Footnote 16 Rights-based claims, in contrast, have been less prominent in the Global North climate jurisprudence. That said, there is growing interest in rights-based claims in Northern jurisdictions, particularly after the decision in Urgenda v. Netherlands, where the Dutch Supreme Court held that the Dutch government was required by international and European human rights legal obligations to increase the ambition and stringency of its climate mitigation targets.Footnote 17
We have argued that the relatively high percentage of rights-based claims in the Global South docket is, at least in part, due to the fact that many of the national constitutions of Global South jurisdictions contain environmental rights and/or the right to life that have been interpreted to include the right to live in a healthy and clean environment.Footnote 18 We also suggested that there is significant potential for the development of rights-based climate litigation in Latin America because there is a rich environmental constitutional jurisprudence in various Latin American jurisdictions, which provides many “hooks” for climate litigation.Footnote 19 The Inter-American Court of Human Rights in 2017 also issued an Advisory Opinion on Human Rights and the Environment, emphasizing the linkages between human rights and environmental protection and providing endorsement for rights-based environmental claims, including on issues of climate change.Footnote 20 Finally, successful cases led by local environmental organizations, such as Dejusticia, offer the potential for South-South cooperation to advance climate litigation in Latin America.Footnote 21
César Rodríguez-Garavito argues that the rights-based route to climate litigation taken in the Global South “is not serendipitous, or the result of the absence of specialized climate change legislation that litigants would otherwise have used in framing their cases. Instead, it is a route whose tracks were firmly laid over the last three decades through public interest law practice, research and judicial activism regarding constitutional rights in general and socioeconomic rights (SERs) in particular.”Footnote 22 More specifically, he argues that civil society actors have been advocating for SERs for a long time and are now carrying over lessons from this advocacy experience and applying them to climate change and other environmental harms.
The same judicial organs that have been receptive to arguments that advance the protection of SERs are more likely to be similarly receptive to rights-based arguments that advance climate protection, particularly for those who are most vulnerable. Rodríguez-Garavito points out that both SERs litigation and rights-based climate litigation share a multilevel framing (i.e., while conducted in national courts, the litigation and rulings are founded on international treaties and constitutional norms), which makes the litigation experience with SERs “directly relevant to climate lawsuits.”Footnote 23
In their work, Joana Setzer and Lisa Benjamin also identify the application of human rights frameworks to be a key feature of climate change litigation in the Global South. They highlight that the socioeconomic and political contexts of Global South jurisdictions are relevant explanatory factors. The post-colonial histories of many Global South jurisdictions feature exploitation by multinational corporations and the continuation of colonial practices by Northern countries in some cases, causing a drain on natural resources, ethnic conflicts, corruption, and weak governance institutions. This has led to grave human rights violations and environmental destruction, but, as a result, some national courts have been progressive in upholding human rights and environmental rights.Footnote 24
9.2.2 Enforcement of Existing Laws
Regulation-forcing litigation or litigation that pursues a climate law reform rationale, akin to Massachusetts v. EPA and Urgenda v. Netherlands, is notably absent in the Global South docket. Instead, what we have identified from our case law survey is that the Global South climate cases demonstrate a preference for the enforcement of laws and policies that already exist (and which suffer from lax or non-enforcement) rather than pushing for new or better climate laws. In seeking enforcement of existing laws, we argue that plaintiffs in Global South jurisdictions are trying to address what they perceive to be more fundamental drivers of climate change. For example, in the case of Pandey v. Union of India, the nine-year-old claimant sought proper enforcement of the national forestry law, the air pollution control law, and the environmental impact assessment (EIA) law on the basis that the non-enforcement of these laws “has led to adverse impacts of climate change across the country.”Footnote 25
Further, in bringing this type of enforcement lawsuit, litigants are able to rely on tried-and-tested case theories and judicial precedents to ground their pleadings. This increases the chances of obtaining a favorable judgment, a factor that, of course, weighs significantly on the minds of all litigators, but more so for those who have to work with fewer financial resources. A related point is that, by relying on fairly well-established legal arguments, Global South plaintiffs avoid the risk of judicial reluctance to address climate change directly for fear of the accusation of judicial overreach.Footnote 26
Setzer and Benjamin have also pointed out that Global South plaintiffs bring cases to address poor enforcement of existing planning and/or environmental laws because they are aware of the capacity constraints involved in passing new legislation on climate change.Footnote 27 Further, the Global South cases tend to involve efforts to protect important native ecosystems, for example, the Amazon, and combat environmental degradation that has been going on for decades.Footnote 28
9.2.3 Stealthy Climate Litigation
We use the term “stealthy” to convey the sense in which Global South climate litigation seeks to advance cautiously and quietly by packaging climate change issues with less controversial claims. This is done to dilute the political potency of climate issues and to avoid the political question doctrine (or non-justiciability doctrine) arguments that are likely to be raised by defense counsel. We have argued that an important reason why litigants in some Global South countries may prefer to pursue climate cases in a more indirect manner is the traditions of judicial restraint and limited judicial review in these jurisdictions. This is the case in a number of Southeast Asian jurisdictions, which eschew notions of the kind of activist court that can be found in other Asian common law jurisdictions (such as India and Pakistan).Footnote 29
More generally, we have observed that there is often a tailoring of legal claims in Global South climate cases to what is viewed as the most important policy issue in the jurisdiction, which is not always climate change. An example is China, where urban air pollution has been a major concern for Chinese citizens and an issue at the top of the political agenda.Footnote 30 It is unsurprising in this case that Chinese scholars, as well as prosecutors, see significant potential for public interest litigation (PIL) to tackle air pollution to serve as a pathway for the emergence of climate litigation in China.Footnote 31 We note that this “stealthy” characteristic of Global South climate litigation may change over time, particularly if there is greater judicial recognition of the links between climate change and well-established legal avenues (e.g., constitutional rights) or if an increasing number of Global South jurisdictions adopt climate change-specific laws in fulfilment of their Nationally Determined Contributions (NDCs) under the Paris Agreement.Footnote 32
9.3 Modes of Climate Litigation in the Global South
Strategic climate litigation in the Global North has been enabled by generous financial support from non-profit foundations, individuals through crowd-funding strategies, and well-resourced environmental non-governmental organizations (NGOs).Footnote 33 In the United States, subnational actors such as the state attorney general play a prominent role in bringing high-profile cases to challenge federal agencies to regulate climate change issues.Footnote 34 Massachusetts v. EPA and California v. EPA – a petition filed in November 2019 by a coalition of states led by California seeking review of, inter alia, the EPA’s proposal to withdraw the waiver it had previously provided to California for that state’s Greenhouse Gas and Zero Vehicle Emissions programs under section 209 of the Clean Air Act – are just two examples.Footnote 35 Environmental law clinics, established firms with a thriving environmental law practice, and legal aid centers with environmental law expertise all contribute greatly to creating relatively favorable conditions for climate litigation in many Global North jurisdictions.Footnote 36
In comparison, much less is currently understood about the modes of climate legal action in the Global South and the constellation of actors needed to support them. Our survey of climate litigation in the Global South, as well as our consultancy work for the Children’s Investment Fund Foundation (CIFF) – a philanthropic organization that provides financial support to various climate litigation initiatives in both the Global North and Global South – have yielded some observations, which we present here as five prototypical modes of legal action (see Table 9.1).Footnote 37 We also draw from our understanding of the litigation pathways that have been undertaken in Global North jurisdictions to develop a number of hypotheses about the modes of action that could emerge in the Global South. As this is a work in progress, and we are at an early stage of trying to gain a fuller picture of how particular actors – local activists, global charities, and lawyers, for example – are contributing to the emergence of climate litigation in the Global South, this framework is preliminary in nature but could serve as a useful starting point for further investigation.
9.3.1 The Grassroots Activist
This category refers to the type of litigation that arguably is most likely to emerge in jurisdictions with a tradition of PIL for the protection of environmental and socioeconomic rights. In these jurisdictions, for example, Pakistan, India, the Philippines, and Colombia, PIL has been enabled by legal reforms and institutional mechanisms that facilitate access to justice for vulnerable groups in society.Footnote 38 Requirements such as the submission of formal petitions to commence proceedings, hefty court fees, and restrictive locus standi rules are typically removed to make it easier for citizens to approach the court.Footnote 39 As a result, PIL is perceived to be a viable route to protect rights, and local activists and communities have pursued it in many environmental claims.Footnote 40 It is then an incremental – but crucial – step for local communities and activists to use PIL as a pathway for climate litigation by pressing for enforcement of existing laws and protection of their constitutional rights.
Apart from PIL that is typically pursued against government agencies, the Grassroots Activist Model also includes litigation by local communities and activists against companies. This is most likely in the natural resource extractive sector, such as oil and gas production, mining, and timber logging. In some Global South jurisdictions, environmental activists and local communities have endured long struggles to prevent multinational corporations from engaging in industrial activities that cause significant damage to their land and ecology.Footnote 41 Some communities have also turned to the courts to seek compensation from corporations that have caused pollution and environmental degradation.Footnote 42 These campaigning and litigation experiences provide Grassroot Activists with the knowledge and expertise to undertake climate litigation. From a different perspective, climate litigation emerges when these activists and local communities include climate change as one of the issues in the litigation, either because climate change worsens the environmental problems that they have been trying to address (e.g., flooding and extreme weather patterns) or the remedy sought by the activists will have climate change co-benefits (e.g., protection of native ecosystems such as glaciers).
The cases within the emerging “Global South climate docket” that fall within the Grassroots Activist category offer scant evidence that the participants in the litigation (the activists, the local community, or the legal team) collaborate with actors from other Global South jurisdictions (South-South cooperation) or with actors from Global North jurisdictions (North-South cooperation). We would hypothesize that, as Global South climate litigation develops, there will be more South-South cooperation and North-South cooperation as participants increasingly engage in global networks and platforms to share their knowledge and expertise.Footnote 43
9.3.2 The Hero Litigator
The Hero Litigator is a lawyer-activist who is passionate about the use of litigation and other legal tools to champion climate justice. She is a dominant figure who has a high-profile role in relation to the litigation, often raising publicity for the case (and climate litigation more broadly) through press conferences and appearances on television programs. The Hero Litigator drives the litigation strategy and process.
In the Global North climate case law, there are a number of cases that have been fought by “Hero Litigators.” An example is Juliana v. United States, the constitutional climate change case brought by twenty-one youths against the US government for violating their Fifth Amendment rights to life, liberty, property, and public trust resources. The lead counsel in Juliana is Julia Olson, the Executive Director and Chief Legal Counsel of Our Children’s Trust. Julia Olson founded Our Children’s Trust to serve as a non-profit public interest law firm that supports litigation by youths “to secure the legal right to a stable climate and healthy atmosphere.”Footnote 44 This goal underpins the litigation strategy (i.e., rights-based constitutional challenges by youth plaintiffs) adopted in Juliana and other cases around the world that are supported by Our Children’s Trust.Footnote 45
Another example of a Hero Litigator is Roda Verheyen, a partner in a Hamburg law firm who has been involved in climate action for a long time.Footnote 46 Verheyen is the lead counsel in at least four groundbreaking climate lawsuits, including Lliuya v. RWE, Carvalho & Others v. Parliament & Council (the People’s Climate Case), the Farming Families case, and the German Youths case.Footnote 47 At the time of writing, the German Youths case had recently been filed. Verheyen will be representing a group of youth plaintiffs who are seeking review by the Federal Constitutional Court of Germany’s new climate protection law that was passed in November 2019. The youth plaintiffs argue that the German government’s new climate policy fails to protect their fundamental rights, and they will be making arguments similar to those advanced in Urgenda v. Netherlands.Footnote 48
As climate litigation develops in the Global South, we hypothesize that some cases following the Hero Litigator model are likely to emerge. In India, for example, M. C. Mehta is widely celebrated as the country’s environmental champion and has filed a record number of PIL suits addressing a wide range of environmental concerns. These include issues of air quality in New Delhi and the prevention of industrial water pollution in the Ganga, which is one of the most sacred rivers to the Hindus and a lifeline to a billion Indian citizens who live along the course of this river.Footnote 49 There are many environmental lawyers in India today who aspire to follow in the footsteps of M. C. Mehta. In this context, it would not be surprising to witness the emergence of a number of Hero Litigators who seek climate justice particularly for the most vulnerable and marginalized sectors of Indian society.Footnote 50 It is also noteworthy that some international organizations working in the Global South seek to cultivate “environmental law champions,” including the Hero Litigator.Footnote 51
9.3.3 The Farmer
This mode of climate litigation refers to the efforts by foundations and other non-profit organizations to “seed” climate lawsuits in the Global South. In the Global North, a number of foundations and global environmental NGOs have played an instrumental role in providing financial and knowledge support to local lawyers and environmental NGOs to launch strategic climate litigation. For example, the People’s Climate Case is funded by a German NGO (Protect the Planet) and Climate Action Network (a large coalition of European NGOs working on energy and climate issues). In the case of Lliuya v. RWE, another German NGO (Germanwatch) funded the litigation. Efforts to promote climate change litigation in Europe received a boost from the Children’s Investment Fund Foundation (CIFF), a nonprofit philanthropy based in London, which aims to reduce carbon dioxide emissions from existing coal plants, improve air quality, and reduce emissions from the corporate sector by funding strategically selected legal cases. CIFF has also awarded a multi-year grant to the UK environmental law firm ClientEarth to “support strategic litigation to accelerate Europe’s low carbon transition and secure Europe’s climate leadership by putting it on a path to net zero carbon emissions by 2030.”Footnote 52
While ClientEarth’s modus operandi in Europe has been about holding governments and companies accountable for their climate actions and policies, ClientEarth’s China program focuses on building legal and judicial capacity for environmental governance more broadly. For example, ClientEarth (China) has an ongoing initiative that involves cooperation with the Supreme People’s Procuratorate (SPP) to develop the relatively new system of prosecutor-led environmental PIL.Footnote 53 It can be argued that through its work with the SPP, ClientEarth (China) is providing valuable knowledge support to a set of actors that is widely recognized to be uniquely placed to hold state-owned enterprises, provincial authorities, and private companies accountable for their compliance with environmental and energy laws using prosecutorial enforcement powers.Footnote 54
In contemporary China, there is a fairly well-established tradition of foreign organizations bringing in foreign ideas, money, or experts. In 1947, the Rockefeller Foundation alone invested $45 million in Chinese medical programs.Footnote 55 In more recent times, the Clinton and Bush administrations gave strong support to rule-of-law programs in China, which were not too different from earlier American efforts to bring legal assistance to Latin America, Africa, and parts of Southeast Asia during the law and development movement of the 1960s.Footnote 56 According to Rachel Stern, between 2001 and 2008, at least eight organizations, including the American Bar Association, the Natural Resources Defense Council, the Ford Foundation, and Environmental Defense Fund, ran programs on environmental information, legal aid, and public participation in environmental decision-making in China.Footnote 57 Rachel Stern argues that many American donors seldom support the costs of litigation and generally opt for “soft support: investing instead in skills to make future litigation and advocacy possible.” This is not surprising as the “toll of state surveillance (both real and imagined) helps explain the enthusiasm for soft support programs … many Beijing-based representatives of American NGOs and foundations agree that direct financial support for an environmental lawsuit falls beyond their comfort zone …. Their goal is to support local reformers, not to be expelled from China or draw attention to themselves.”Footnote 58
It is arguable that the Farmer mode of climate litigation in the Global South could either take the form of (a) Global North non-profit organizations beginning to expand their programs to fund climate litigation in Global South jurisdictions that are highly vulnerable to the impacts of climate change or that are major GHG emitters (e.g., Brazil) or (b) broad “soft support” programs (to borrow Rachel Stern’s terminology). Either route could be the basis for significant local capacity-building, which could have a positive multiplier effect for climate litigation.
9.3.4 The Engineer
In the Global North, the Engineer Model is most clearly illustrated by Urgenda, the organization behind the groundbreaking legal victory that has compelled the Dutch government to increase the stringency of its GHG emission reduction targets. Urgenda’s case theory is heavily influenced by Roger Cox, whose book explicitly endorses a transplant model to climate litigation.Footnote 59 Urgenda’s vision is that its success can be replicated elsewhere, and it has led to similar litigation in Belgium, Germany, Ireland, and the United Kingdom.Footnote 60 The Engineer is typically proactively involved in the transplant efforts (e.g., by actively sharing information about its legal strategy and working with local lawyers in the “target jurisdiction”).
There is a vast literature on legal transplants, which seeks to address questions such as the essential conditions for successful legal transplant and how imported legal institutions and rules perform in the long run.Footnote 61 While we seek to draw lessons from this literature, we use the term “legal transplant” in a more deliberate manner than how it is commonly used in the literature. Our use refers to a concerted effort by a transnational actor to replicate the success of a particular climate litigation strategy elsewhere outside its home jurisdiction, with the aim of driving change in that jurisdiction’s climate law and policy. Our review of the Global South case law has not revealed that there are currently cases driven by the Engineer’s mode of action, but we hypothesize that the growing interest in Global South climate litigation could lead to a transnational actor seeking to replicate its success in the Global South.
9.3.5 The Enforcer
In this mode, cases are initiated by prosecutors or law enforcement authorities in a country, sometimes with technical (scientific and legal) support provided by non-governmental organizations. In Brazil and Indonesia, for instance, the plaintiff in the majority of climate litigation cases has been the public prosecutor or a government ministry seeking enforcement of domestic laws.Footnote 62 For example, both Ministry of Environment and Forestry v. PT Jatim Jaya Perkasa and MoEF v. PT Waringin Agro Jaya were enforcement actions brought by the Indonesian Ministry of Environment and Forestry against palm oil companies for illegally setting fire to the land to clear it for palm oil cultivation. The ministry sought restoration measures, including compensation for carbon released into the atmosphere.Footnote 63 In China, as previously mentioned, the prosecution service has been granted extensive powers to pursue environmental enforcement litigation in the public interest, and this has led to cases to address urban air pollution (which have co-benefits of climate change mitigation).Footnote 64
Our case law review did not include consideration of whether external actors (e.g., environmental NGOs) provided assistance to the enforcement agencies in bringing these cases. However, informal discussions with our contacts in civil society and government-affiliated research institutions have indicated that it is not uncommon for enforcement agencies in Global South jurisdictions, which are typically under-resourced, to work with external actors who can provide valuable information from their programs and expert evidence.Footnote 65
We suggest that the Enforcer mode has the potential to advance climate litigation in the Global South, particularly with greater recognition of the link between enforcement of existing environmental and natural resource management laws and climate change.
9.4 Conclusion
This chapter has sought to provide a brief overview of our current understanding of climate litigation in the Global South. We started by elaborating our understanding of climate litigation and highlighting a number of key characteristics that we believe distinguish Global South climate litigation. We then proposed a framework that elucidates the different, prototypical modes of legal action in the Global South and how they are shaped by particular actors, including local activists, global non-profit foundations, and lawyers.
There is currently an unprecedented level of scholarly interest as well as practical action in the climate litigation space. There is also an emerging transnational climate litigation community comprising environmental activists, lawyers, scholars, and judges that is interacting with other transnational climate social movements such as FridaysforFuture. With the Global North having twenty years of climate litigation experience ahead of the Global South, it could be tempting to replicate familiar patterns of knowledge diffusion premised on the notion of the Global South learning and receiving resources from the (advanced) North. This temptation should be resisted, and the climate litigation space shows that the Global South experience is a rich and powerful one that offers many interesting opportunities for multi-directional learning.
10.1 Introduction
Climate change litigation has been growing in importance over the past three decades as a way of either advancing or delaying effective action on climate change.Footnote 1 Of particular interest to the present analysis are the various legal strategies that have been developed and are being used against major fossil fuel companies. The trend is underpinned by the idea that high-profile climate litigation in private law has the potential to effectively target a relatively small group of corporations who are responsible for a large percentage of emissions.Footnote 2 The cases filed in this new wave of litigation against major emitters (the ‘Carbon Majors’) have been supported by Richard Heede’s work, as well as by advancements in the science of climate attribution.Footnote 3 See Richard Heede’s chapter (Chapter 12) and Michael Burger, Jessica Wentz, and Daniel Metzger’s chapter in this volume (Chapter 11) for more on this. But questions about whether the outcomes of such litigation actually help to address climate change in a meaningful way remain unanswered.Footnote 4
Measuring the impact of strategic litigation is never easy. When looking at climate litigation against governments, there are successful landmark cases where it has been possible to identify pro-regulatory impacts that resulted from this type of legal strategy.Footnote 5 In the Urgenda case, for example, following the Supreme Court decision, the Dutch government committed to reducing the capacity of its remaining coal-fired power stations by 75 per cent and implementing a three-billion-euro package of measures to reduce Dutch emissions by 2020. Regulatory challenges to permits authorizing high emitting projects can also be considered successful in regulating emissions. These decisions could lead to effective mitigation or adaptation action, provided that the court mandates are not overturned by ministerial action or inaction.Footnote 6
The impacts of high-profile litigation against major fossil fuel companies, however, are less clear. To start, the majority of high-profile cases filed against Carbon Majors are still ongoing, and it can take many years before nuisance and fraud cases are decided in court. Also, many of these cases are legally difficult, in that they face both procedural and substantive doctrinal hurdles. For these reasons, before high-profile nuisance and fraud cases against major fossil fuel companies reach a decision in court, litigants often use intermediate steps to apply pressure on companies. Even before they get to a trial on the merits and an eventual judgment, litigants use the cases to influence different audiences – not just the companies directly, but also the public, investors or financiers, insurers, and regulators. Another strategy is to bring cases against other actors that will have indirect effects on Carbon Major companies (e.g., divestment cases)Footnote 7 or to use alternative legal interventions that have more immediate results and easier wins (e.g., bringing claims of deceptive ‘greenwashing’ marketing campaigns by Carbon Major companies to courts or non-judicial bodies).
Ultimately, strategic climate litigation directly against and/or indirectly targeting Carbon Majors aims to help reshape narratives about energy production and the consequences of global warming. This type of litigation advocates a shift from fossil fuels to renewables and draws attention to the vulnerability of coastal communities and infrastructure to extreme weather and rising sea levels. In addition, it articulates climate change as a legal and financial risk with the aim of driving behavioural change and guiding climate change-responsive adjudication in the longer term. As such, this type of litigation not only seeks the provision of effective legal remedies for climate harms but also aims to transform how climate change is defined and how it should be addressed.Footnote 8
This chapter considers key characteristics of high-profile climate litigation brought against Carbon Majors, while also taking into consideration some of the impacts that climate litigation brought against governments and against other private actors might have on Carbon Majors. The chapter examines the different types of cases using a temporal framing: cases that look into the past (liability cases) and cases that look into the present and the future (fraud claims, disclosure claims, and human rights procedures). It then introduces a discussion on how to assess some of the direct and indirect regulatory and financial impacts of such cases. Focusing on the indirect financial impacts, this chapter suggests that event studies could be applied to assess the potential impact of climate litigation on the stock prices of defendant companies.
The structure of this chapter is as follows. Section 10.2 presents key aspects of strategic private climate litigation against Carbon Majors. Section 10.3 discusses some of the ways in which climate litigation can potentially impact major emitters and contemplates the possibility of using event studies to assess the eventual impact of climate litigation on the market valuation of listed Carbon Majors companies. Lastly, Section 10.4 presents conclusions and issues for further exploration.
10.2 Litigation against Carbon Majors
Up until the end of 2020, there were at least forty-seven ongoing climate cases worldwide against Carbon Major companies.Footnote 9 The majority of these cases have been brought in the United States, starting in 2005, and more significantly beyond the United States since 2015. Following a first wave of unsuccessful lawsuits against oil, gas, and electric companies in the early 2000s in North American courts, a new wave of climate change lawsuits have been filed over the past five years against major fossil fuel companies.Footnote 10 These two waves of climate litigation against Carbon Majors can be visualized in Figure 10.1. The Carbon Majors research helped drive this second wave, singling out a list of corporations that historically have contributed the most to GHG emissions.Footnote 11 This research mapped and quantified the cumulative emissions of the ninety largest carbon producers from 1854 to 2010.
Other advancements in climate science are also contributing to the development of climate litigation against major emitters. In terms of the science, there is robust evidence to establish a strong causal connection between historic and future anthropogenic greenhouse gas emissions, an increase in the global mean surface temperature, and the likelihood of individual severe weather and climate-related events.Footnote 12 But in an increasing number of climate litigation cases, challenges remain when attributing specific climate-related events to global GHG emissions or specific emitters. Legal scholars and climate scientists are making a clear effort to make findings in climate attribution research more accessible to litigants. Interdisciplinary research has started to offer approaches that enable causal statements to be made in law about the physical reality of climate phenomena, side by side with the presentation of probabilistic evidence that defines the relationships between factors in and events caused by a changing climate.Footnote 13
This litigation against Carbon Majors has different aims.Footnote 14 Some cases are directed at changing corporate behaviour directly, for example, by seeking an order requiring the targeted company to change its policies. Other cases provide the basis on which different groups and individuals can subsequently pressure major emitters to change their corporate behaviour. This section examines different types of climate litigation filed against major emitters, taking into consideration a temporal framing: cases that look into the past (liability cases) and cases that look into the present and/or the future (fraud claims, disclosure claims, and human rights procedures).Footnote 15
10.2.1 Looking into the Past
Several high-profile cases against Carbon Majors have been sought in tort, including public nuisance, private nuisance, and negligence. The premise of such cases is that Carbon Majors have contributed a significant amount to the greenhouse gases that cause climate change and understood the consequences of burning fossil fuels and, yet, continued to do so; therefore, they should be held liable for the consequent damages.Footnote 16 Further, some litigants argue that Carbon Major corporations have taken actions to confound or mislead the public about climate science.Footnote 17 These cases typically rely on tort law and advancements in climate science, particularly climate attribution. Liability cases against major emitters include Lliuya v. RWE AG,Footnote 18 the case brought in Germany by a Peruvian farmer against RWE, the German electric utilities company, and the thirteen lawsuits brought in the United States by subnational governments – cities, counties, and one state – against a number of Carbon Major companies.
10.2.2 Cases Looking into the Present and the Future
In addition to cases that focus on the impacts of past emissions, litigants have brought cases seeking to change current and future corporate behaviour. Several lawsuits have asserted that companies are misleading consumers about the central role that their products play in causing climate change and/or intentionally misleading investors about material climate-driven risks to their business. Importantly, in some cases, litigants are seeking an injunction relief, a remedy that would require Carbon Majors to refrain from performing a particular act.
In the unsuccessful civil case of New York v. Exxon Mobil Corporation,Footnote 19 the state’s Attorney General argued that the company had engaged in fraud through its statements about how it accounted for the costs of climate change regulation. The case started in 2015, with a four-year investigation that led ultimately to a lawsuit alleging that Exxon’s publicly disclosed projections of climate change-related costs were inconsistent with its internal projections and were therefore fraudulent. The court held that the majority of investment decisions are not based on climate change cost assumptions and therefore the Attorney General had not been able to prove material misrepresentation. However, the court was careful to note that its decision did not excuse Exxon from any responsibility that it may have for causing climate change as the case related only to issues of fraud and not to climate change more broadly.
Another modality of climate litigation that addresses a discrepancy between discourse and action, sometimes referred to as ‘greenwashing’, manifests when products, services, or advertising campaigns mislead consumers about their overall environmental performance or benefits. An example of a greenwashing (or ‘climatewashing’) case against a Carbon Major is the Complaint against BP,Footnote 20 filed by the environmental law firm/NGO ClientEarth before the UK Contact Point under the OECD Guidelines for Multinational Enterprises. The complaint alleged that a BP advertising campaign had misrepresented the scale of BP’s low-carbon activities, provided inaccurate information about the emissions savings from its natural gas activities, and overemphasized the importance and desirability of increasing primary energy demand. The complaint did not proceed further as BP ended the advertising campaign in question. Nevertheless, the UK Contact Point analyzed the filing and found that the complaint was material and substantiated.
In this effort to shift the current and future corporate behaviour of major emitters, an important trend has been for litigants to rely on human rights law to define the scope of corporate duty of care and due diligence. In Milieudefensie et al. v. Royal Dutch Shell,Footnote 21 the plaintiffs claim that Shell committed to support the Paris Agreement and, at the same time, continued to lobby against climate policies and invest in oil and gas extraction. In this case, the applicants rely on human rights to define the contours of the corporate duty of care and due diligence obligations under Dutch tort law, seeking an injunctive relief that would require Shell to align its emissions with the Paris goals. In Notre Affaire à Tous and Others v. Total,Footnote 22 an alliance of French NGOs and local governments sought a court order forcing Total to issue a new vigilance plan that considered the risks related to global warming beyond 1.5 degrees Celsius, Total’s contributions to those risks, and a plan aligning the company’s activities with a greenhouse gas emissions reduction pathway compatible with limiting warming to 1.5 degrees Celsius.
The last type of forward-looking cases using human rights as a basis for Carbon Majors litigation argues that corporations have specific human rights responsibilities. However, unlike states’ duties to protect,Footnote 23 private law is an area in which human rights law is not clear-cut.Footnote 24 The so-called business and human rights regime is only specified in soft law instruments, such as the UN Guiding Principles on Business and Human Rights. The first of such cases is an extra-judicial investigation – the inquiry initiated by the Commission on Human Rights of the Philippines in response to a petition filed by Greenpeace Southeast Asia and the Philippines in 2015.Footnote 25
10.3 Understanding the Potential Impacts of Climate Litigation
As climate change litigation is increasingly used as a tool for climate governance, it is important for litigators to understand the potential impacts that litigation against Carbon Majors can have in order to assess its resonance in different circumstances. The impacts of climate litigation can be regulatory and financial, direct and indirect. This section discusses (i) the regulatory and (ii) financial impacts of cases brought against Carbon Majors (described in Section 10.2) as well as cases brought against other actors but that might impact Carbon Majors. It also contemplates (iii) the possibility of using event studies to assess the eventual impact of climate litigation on the market valuation of listed Carbon Majors companies.
It should be noted, however, that while different impacts can be observed among all types of climate litigation, questions about whether the outcomes of these cases actually help to address climate change in a meaningful way remain unanswered.Footnote 26 Assessing the significance of climate change litigation involves questions of how to define impact, which evidence sources to consider, and the relevant time frame for assessment.Footnote 27 Time frame is particularly important given that legal cases may take several years to progress through the courts and the full effects may be manifested much later down the line. At the same time, an evaluation of the effectiveness and impacts of climate litigation does not end with the result in the courts; a consideration of what cases or strategies work must include an understanding that a win or loss in litigation may have implications that are complex and difficult to understand.Footnote 28 Moreover, litigation strategies do not take place in isolation from other political and social mobilization efforts; rather, litigation strategies are combined with other strategies, such as policy advocacy and public campaigns.Footnote 29
10.3.1 Direct and Indirect Regulatory Impacts of Litigation
One way to proceed with an assessment of the regulatory impacts of climate litigation is to follow frameworks such as the one suggested by Peel and Osofsky.Footnote 30 According to this framework, direct regulatory impacts occur where formal legal change results from the litigation. This may be manifested through targeted rules, policies, or decision-making procedures that are mandated by a judgment or arise out of the legal interpretation developed by the court. Direct regulatory impacts resulting from litigation brought against governments can indirectly affect Carbon Major companies. These forms of litigation, although focused on regulatory behaviour, have the potential to change government policies and thereby affect Carbon Majors. When successful, these cases have implications for the speed and scope of the transition to a lower carbon economy. For example, litigation against governments can lead to more stringent emissions standards, compel the inclusion of GHG emissions limits in regulatory permits issued to new activities/particular sectors, result in the delay or revocation of permits and licences, or lead to more stringent procedural obligations, such as reporting and disclosure.Footnote 31
Indirect regulatory impacts, in turn, describe pathways that arise due to the incentives that judgments provide for behavioural change by governmental and non-governmental actors. Indirect regulatory impacts include the increased sensitization of legal institutions to the nature of climate change and increased public awareness of climate change and its impacts. Examples of indirect regulatory impacts experienced by corporate actors include the spillover of regulatory actions (e.g., when lawsuits are combined with other forms of activism and public campaigns) and an increased perception of ‘litigation risk’.Footnote 32
10.3.2 Direct and Indirect Financial Impacts of Litigation
Because strategic litigation against Carbon Majors is intended to change the behaviour and, ultimately, the business models of companies that contribute significantly to GHG emissions, understanding the financial impacts of these claims is also critical. For that, it is necessary to pursue a quantitative assessment of the direct and indirect economic costs and financial impacts of climate litigation.Footnote 33
Direct financial impacts are easier to calculate. As with other types of litigation, for the defendants, direct impacts usually include legal and administrative costs, legal fees and fines, and, if the case is successful, awards of damages. These financial impacts can occur at a pre-filing stage, during the legal proceeding itself, and after the final judgment, award, or decision.Footnote 34 The exponential increase in harmful climate impacts globally means that Carbon Major corporations may be liable for billions of dollars’ worth of damages for existing as well as future climate impacts, and not all climate change damage is covered by the insurance policies held by Carbon Major companies.Footnote 35 The scale of the liability for damages may vary depending on whether they arise out of past emissions or out of future emissions if there is no change of course in their emissions.
As with indirect regulatory impacts, the indirect financial impacts of climate litigation against major carbon emitters are harder to measure. To start, the regulatory impacts of successful high-profile cases brought against governments (mentioned in Section 10.3.1) can result in economic costs to major emitters. In some instances, Carbon Majors might experience the indirect regulatory impacts of cases brought against financiers, pension funds, and university endowments. Some of these cases might intend to pressure Carbon Majors and are brought as part of a broader strategy by social movements or organizations to increase the viability of ongoing campaigns against major emitters.Footnote 36 Indirect financial impacts of litigation against Carbon Majors also include increasing premiums under liability insurance policies, increasing capital costs, and the devaluation of shares of listed companies.Footnote 37
Indirect economic impacts resulting from climate litigation are still speculative.Footnote 38 In theory, investors may react to the direct cost of the lawsuit and/or perceive that climate cases could undermine companies’ reputations and try to anticipate potential reputational losses by selling their shares.Footnote 39 In addition, climate lawsuits brought by shareholders against Carbon Majors on the basis that these companies will have to radically shift their business model or else risk exposure to stranded assets might also result in investors trying to anticipate potential costs by selling their shares.
10.3.3 Measuring the Indirect Impact of Litigation on Stock Prices
When considering the indirect economic impacts of litigation, one of the most common indicators is identifying whether litigation affects the market valuation of listed companies. The impact of litigation on stock prices is measured through event studies – a methodology widely used to examine the shareholder wealth consequences of different types of lawsuits.Footnote 40 Event studies assessing the impacts of litigation have been undertaken for different types of litigation, including tobacco, asbestos, and environmental litigation in the United States. In tobacco litigation, unfavourable litigation announcements were found to cause share prices to fall relative to those in reference industries.Footnote 41 Factors causing this revaluation of share prices include the prospect of high legal fees, significant liability or settlement payments, and reputational costs.Footnote 42 The financial impact of strategic litigation was equally, if not more, significant for the asbestos industry. Researchers estimate that between 1976 and 2004 at least seventy-three companies filed for bankruptcy as a result of the costs of asbestos litigation and the prospect of future liability.Footnote 43
Within the field of environmental regulation, both actual and potential environmental lawsuits were found to lead to falls in share prices. The Volkswagen emissions scandal of 2015 (‘Dieselgate’) stands out, with the disclosure of the breach by the Environmental Protection Agency leading to a loss in market value of around 30 per cent in several days.Footnote 44 Dieselgate had significant spillover effects, with American automobile companies all experiencing falls in their share values.Footnote 45 Furthermore, following Dieselgate, share price drop in response to failures to meet environmental standards increased, reflecting heightened scrutiny of the automotive industry by investors.Footnote 46
Although the existing literature analyzed different industries and types of cases, they suggest that strategic litigation can impose detrimental financial impacts on the share prices of the industries against which cases are brought.Footnote 47 These financial impacts were, in the tobacco and asbestos cases, exacerbated by additional suits or the unveiling of damaging internal documents tracing a pattern of concealment and misrepresentation. In environmental cases, the impact of disclosure has been particularly severe, as it unveils greenwashing, which in turn is found to lead to additional litigation, losses in reputation, consumer trust, and corresponding market share.Footnote 48
In a number of cases that have been studied, drops in share value have influenced corporate behavioural change.Footnote 49 One notable example is the signing of the master settlement agreement by tobacco companies, as it indicated a willingness to pay a premium to stabilize share prices and obtain price stability.Footnote 50 Decades of law and finance literature suggest that litigation risk and actual litigation can have significant long-lasting effects on defendant firms and their executives and directors, with further ramifications for corporate activities, policies, behaviours, and outcomes.
Would that also be the case for climate litigation against Carbon Majors? The climate lawsuits filed against Carbon Majors have already imposed significant direct costs on both plaintiffs and defendants. An assessment of indirect costs suffered by Carbon Majors companies could show whether, in addition to the direct costs, these companies are suffering – or will suffer – drops in share values that are significant enough to drive shifts in their policies and behaviour.
10.4 Conclusion
Litigation as a governance strategy is costly and risky, and it takes place alongside other political and social mobilization efforts. The indirect impacts of climate litigation against Carbon Major corporations constitute one piece of a larger puzzle that needs to be put together when considering if and to what extent litigation can operate as a governance tool capable of driving change in corporate policies and behaviours. If the costs to defendants associated with defending claims – including reputational costs – do not outweigh the benefits of continuing the impugned conduct or similar practices, the defendants’ imperative to change their behaviour will be limited, and the strategy could be ineffectual. This will be the case regardless of the costs and benefits to the plaintiffs.
Event studies have not yet been carried out to assess the eventual impact of climate litigation against major carbon emitters. Considering the findings in studies carried out in other types of litigation, it is possible that strategic litigation will impose detrimental financial impacts on the share prices of Carbon Major companies, and such drops in share value could influence corporate behavioural change. But assessing the indirect costs incurred by Carbon Majors as a result of their involvement in climate litigation is not an easy task. Nevertheless, developing an understanding of the costs and impacts of climate litigation is still crucial, not only within academic circles but also for the legal professionals, claimants, defendants, funders, and individuals that are involved in or affected by the outcomes of these cases.