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

3.5 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.

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.

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.

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:

Women are disproportionately affected by climate change as a result of the underlying social and economic barriers they confront more generally:

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:

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

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:

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:

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:

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:

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:

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:

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:

1. (i) ‘represent a progression’ over time (the principle of upward only progression or non-regression)Footnote ³⁸; and

2. (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:

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:

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:

1. (a) Consistency (i.e., with approaches and measures taken by comparably resourced states as well as internally between policies);

2. (b) Proportionality (i.e., of the state’s measures in view of the gravity of the risk and harm);

3. (c) Due process (i.e., public participation, adequate reason-giving and justification, taking into account all material issues); and

4. (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:

1. (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

2. (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:

   1. (i) whether the state’s analysis aimed to match or better the measures and targets of the most ambitious comparable states;

   2. (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;

   3. (iii) whether target setting has been conducted transparently, with public participation, to allow all possible options and measures to be considered; and

   4. (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:

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.

9.3 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.

Table 9.1 Prototypical modes of climate litigation in the Global South

Grassroots Activist	Local activists and community groups sue governments or companies to realize more ambitious climate action. Little or no collaboration with actors from other Global South jurisdictions (South-South cooperation) or with actors from Global North jurisdictions (North-South cooperation).
Hero Litigator	A dominant figure – the activist lawyer – drives the litigation strategy and process. The hero litigator sees himself or herself as an unequivocal force for good. Can be a local lawyer or a foreign lawyer who is inspired to fight for climate justice on behalf of the community.
The Farmer	Foundations and other non-profit organizations provide funding to local lawyers and environmental non-governmental organizations to “seed” new climate litigation. May be the basis for significant local capacity-building, which could have a positive multiplier effect for more climate litigation.
The Engineer	A transnational actor seeks to replicate the success of a particular legal strategy in other jurisdictions deemed to have suitable conditions for successful transplantation. Builds upon the vast literature on legal transplants. Advances a new line of enquiry about the suitability of a legal transplant approach in climate litigation.
The Enforcer	Prosecutors or government agencies bring lawsuits to enforce local laws. Local NGOs may engage with enforcement agencies to support these actions.

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.

Figure 10.1 Numbers of cases against the Carbon Majors, January 2005–December 2020.

Source: Setzer and Byrnes (2020), based on CCLW and Sabin Center data

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

10.3 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

10.4 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.