2.2.1 Forging a New Right: The International Right to a Healthy Environment

Legal opportunities for the rights turn in climate litigation resulted partly from the broader, longer-term process of convergence between human rights and environmental governance. This process approximates a norm cascade, as one country after another added a right to a healthy environment to its constitution, and international human rights law eventually followed suit.Footnote ⁴² To date, at least 164 countries have recognized a legally binding right to a healthy environment in constitutions, legislation, and treaties, and only 32 have not.Footnote ⁴³

At the global scale, this norm cascade reached its tipping point with the 2021 UN Human Rights Council and the 2022 UN General Assembly resolutions recognizing “the right to a clean, healthy and sustainable environment as a human right.”Footnote ⁴⁴ This new universal right was the result of a two-decade process of norm creation. Among the key norm entrepreneurs were states such as Costa Rica, the Maldives, and Switzerland, as well as NGOs like CIEL, Earthjustice, and the Universal Rights Group. Interestingly, this process intersected in unexpected ways with the emergence of specific norms on climate and human rights.

Historically, states in both the Global North and the Global South believed that environmental and human rights issues should be kept as entirely separate fields of global governance. This conviction was clearly on display in the first debates on human rights and the environment that took place at the UN Human Rights Commission (the predecessor to the Council) in the mid 1990s. Starting in 1994, the Commission considered a series of proposals on the matter which, for different reasons, faced stiff resistance from leading countries from both the Global North and the Global South and ended in underwhelming Commission resolutions that effectively thwarted this initial attempt to link environmental and human rights governance at the global scale.Footnote ⁴⁵

The environmental rights normative cascade was ultimately unleashed by specific concerns about climate change, which had become an existential threat to a number of Global South countries by the mid 2000s. Island countries like the small Pacific Island nations and the Philippines brought the issue of climate change and human rights to the newly established UN Human Rights Council.Footnote ⁴⁶

The first step in this direction was the adoption by consensus of Council Resolution 7/23 in 2008. This was the first UN resolution to acknowledge that global warming raises “an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights.”Footnote ⁴⁷ It also requested that the Office of the High Commissioner for Human Rights (OHCHR) prepare the aforementioned 2009 report on the matter.Footnote ⁴⁸ The report was later followed by Council Resolution 10/4 in March 2009, which took note of the report’s findings and called for the organization of a panel discussion on climate change and human rights, which took place during the Council session of June 2009.

After that point, it became clear that political differences would stall further progress on climate and human rights at the Council, which led some norm entrepreneurs in government and civil society to conclude that the way out of this impasse would be a two-pronged strategy. First, they sought to build the climate–rights link into the climate governance regime. This resulted in the first mention of human rights in a COP agreement. “Parties should, in all climate change related actions, fully respect human rights,” read the agreement reached at COP16 in Cancun in 2010.Footnote ⁴⁹ Second, in the domain of human rights governance, the strategy before the UN Human Rights Council consisted in returning to a focus on the broader linkage between human rights and the environment.

The institutional formula that unlocked the normative cascade on the environment and human rights was the Council’s decision to appoint, in 2012, an Independent Expert tasked with compiling, analyzing, and clarifying human rights norms relating to the enjoyment of a right to a clean and healthy environment.Footnote ⁵⁰ The Council renewed the appointment of the Independent Expert (John Knox) for an additional three years and upgraded the mandate to a permanent Special Rapporteurship on human rights and the environment in 2015.

UN Special Rapporteurs (UNSRs) are textbook instances of norm entrepreneurship. In addition to conducting country missions, they produce thematic reports that clarify the state of international norms in their fields. In fragmented or emergent normative fields like the environment and human rights, they must strike a fine balance between norm clarification and norm creation. They need to track closely the existing level of interstate normative consensus, as they must report periodically to and seek the support of the Council and the international community of states at large. However, they also need to provide authoritative guidance on how to interpret and extend existing norms into new domains (like climate change) as well as suggest new norms that could fill the gaps that are common in global governance and international law regimes.

The story of this UN mandate was inextricably intertwined from the beginning with the idea of recognizing a new universal right to a healthy environment. Bearing in mind the successful effort of the UNSR on the right to water that led to the recognition by the UNGA of that right in 2010, state and civil society proponents of the Independent Expert (later Special Rapporteur) mandate on human rights and the environment hoped that it would play a similar role and achieve a similar result. The strategy paid off a decade later, with the 2021 UN Human Rights Council and the 2022 UNGA resolutions recognizing the universal right to a healthy environment.

The environment and human rights cascade is now coming full circle as it falls back down onto domestic law with renewed force. Several of the states that had not incorporated the right to a healthy environment into their legal system have recently done so. For instance, in 2023, Canada introduced substantial updates to its framework environmental law, the Canadian Environmental Protection Act. Among those changes is the explicit recognition of the right to a healthy environment and the government’s duty to protect it.Footnote ⁵¹ Importantly for our purposes, the right to a healthy environment has become one of the core arguments in many domestic RCC lawsuits. And it has figured prominently in the hearings and state submissions leading to the advisory opinions on climate change by the IACtHR, the International Tribunal for the Law of the Sea (ITLOS), and the International Court of Justice (ICJ). Tellingly, one of the four questions that ICJ justices asked during the December 2024 hearings on the matter in The Hague was precisely about the content and implications of the right to a healthy environment.Footnote ⁵²

In addition to the crafting of a new universal right, the UNSR and other norm entrepreneurs have been actively interpreting and expanding the reach of existing human rights to address the ecological emergencies of the Anthropocene. This is the process that former UNSR Knox has called the “greening of human rights.”Footnote ⁵³ I prefer to call it “climatizing human rights”Footnote ⁵⁴ in order to home in on the ways in which human rights norms, rules, and institutions have been deployed in climate governance, including climate litigation. In investigating the linkage between climate and human rights, I also examine the extent to which a specific normative stream is emerging at the intersection of climate governance and human rights.

2.2.2 Climatizing Human Rights

This transnational process has proceeded in both directions of the climate–rights nexus. Advocates, litigants, courts, UN officials, and other norm entrepreneurs have climatized human rights by (1) assessing the impacts of global warming on the enjoyment of existing human rights and (2) articulating the need for climate policies to be consistent with human rights. The first direction entails assessing how current and future events induced by rising temperatures – for instance, heat waves, floods, wildfires, and hurricanes that are rendered more likely and more frequent by global warming – violate or create serious risks for the rights to life, physical integrity, health, food, water, housing, and other human rights. The opposite direction runs from human rights to climate change and hinges on the argument that effective climate action requires the respect, fulfillment, and protection of human rights. This entails, for instance, examining whether clean energy projects – from the extraction of minerals to the construction of massive facilities for renewable energy production – comply with substantive and procedural rights (e.g., Indigenous peoples’ rights to free, prior and informed consultation and consent). As renewable energies expand rapidly around the world, the deployment of human rights norms to ensure a “just transition” has become an important concern for advocates and, increasingly, courts.

The UN OHCHR has, since the mid 2010s, actively promoted the articulation of the link between climate action and human rights. The decisive language of its 2015 report on the matter illustrates this turn. “Simply put,” concluded the Commissioner, “climate change is a human rights problem and the human rights framework must be part of the solution.”Footnote ⁵⁵

The OHCHR has not been alone in climatizing international human rights. As noted, the key norm entrepreneurs in this regard have been the UNSRs on human rights and the environment. Given the broad scope of their mandate, the UNSRs initially examined the environment–human rights connection in general, rather than the climate–rights nexus in particular.Footnote ⁵⁶ The next UNSR, David Boyd, applied this analysis to climate change specifically. In his 2019 report on the matter, he went beyond legal doctrine and pointed to the policy consequences of reframing global warming as a human rights issue.Footnote ⁵⁷

The culmination of integrating climate change into the formal UN human rights architecture was the establishment of the UNSR on climate change and human rights in 2021. In its initial report to the UN General Assembly in 2022, the first UNSR, Ian Fry, foregrounded the debate on financial compensation for losses and damages incurred by vulnerable countries and communities due to global warming, which would come to dominate intergovernmental negotiations at COP27 in Egypt later that year.

To sum up, in terms of legal mobilization theory, both the advances and the shortcomings of the climatization of rights constitute central components of the legal opportunity structures (the “legal stock”) that litigants, as well as some courts, are mobilizing in RCC cases.

2.2.3 Economic and Social Rights

A third normative stream feeding into the RCC litigation cascade has come from other quarters of human rights law and practice, especially economic and social rights. Lawsuits on rights like health, education, food, and housing exhibit several of the same traits as climate litigation in that they affect a large, geographically dispersed population, implicate numerous government agencies alleged to be responsible for pervasive policy failures that contribute to rights violations, and tend to involve structural injunctive remedies and supervisory jurisdiction mechanisms to monitor compliance with courts’ orders.Footnote ⁵⁸

The nature of economic and social rights also raises climate-relevant conceptual and legal issues that litigants and courts have been dealing with for several decades. While economic and social rights are justiciable legal norms, they are also programmatic statements meant to guide state and societal efforts at progressively attaining material well-being. Since governmental and societal duties associated with these rights are partially indeterminate, in that they can be fulfilled through a range of policy actions and are subject to resource availability, such duties cannot simply be complied with peremptorily. As noted, progressive realization and open-ended duties are also hallmarks of climate governance after Paris. This explains why RCC litigants and courts have drawn on economic and social rights norms in their submission and decisions.

The UN Committee on Economic, Social and Cultural Rights has contributed to fleshing out the climate–rights connection.Footnote ⁵⁹ Its 2018 statement on climate change noted that state duties under the International Covenant on Economic, Social and Cultural Rights translated into obligations not only to adapt to but also to mitigate climate change. It also brought key principles of human rights law to bear on climate action by asserting that “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 states’ obligations to respect, fulfill, and protect human rights.Footnote ⁶⁰

In terms of the other direction of the rights–climate connection, the Committee has also highlighted the need for climate policies and programs to comply with human rights. For instance, in the 2019 joint statement on climate change that it issued with a number of human rights treaty bodies, it noted that in “the design and implementation of climate policies, States must also respect, protect and fulfil the rights of all, including by mandating human rights due diligence and ensuring access to education, awareness raising, environmental information and public participation in decision-making.”Footnote ⁶¹

The integration of climate governance and human rights has continued apace. However, as humans (and nonhumans) around the planet struggle to deal with or escape the highest temperatures the Earth has experienced in a million years,Footnote ⁶² the reality of the climate emergency has become painfully unavoidable. Since the legal stock of climate governance and human rights still falls short of what is needed to address those consequences, advocates have increasingly turned to courts to try to close the gap.

2.4.1 The Logic and Setbacks of the Paris Model

The Paris Agreement’s regulatory logic stands in contrast with the pre-Paris regime. In terms of Gráinne de Búrca, Robert Keohane, and Charles Sabel’s typology of global governance, the climate regime went from an unsuccessful effort to establish a comprehensive, integrated regime (Kyoto) to an ongoing attempt to consolidate an experimentalist regime (Paris) that creates incentives for states to act on climate through an iterative process of international negotiations, domestic civil society pressure, emissions reporting based on IPCC methodologies, and periodic stocktaking and peer review of progress on climate mitigation and adaptation.Footnote ⁷⁸

Regarding climate mitigation, it aims to limit “the increase in the global average temperature to well below 2℃ above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5℃ above pre-industrial levels.”Footnote ⁷⁹ As for adaptation, the Agreement aims to increase countries’ adaptive capacity to the consequences of climate change already being felt. Through this, it aims to increase resilience and reduce the vulnerability of people to increasing and compounding climate impacts.Footnote ⁸⁰

In order to achieve the Agreement’s goals, states are required to submit nationally determined contributions (NDCs) which detail the GHG emissions reduction and adaptation targets they set and the measures through which they will achieve those targets. Though states are required to submit these NDCs, their precise content and implementation are voluntary. Nevertheless, the NDCs are supposed to reflect each state’s “highest possible ambition” and “represent a progression” in ambition over time.Footnote ⁸¹

Iterative stocktaking processes – where states monitor progress in implementation of the Agreement – are intended to ensure governments act with the ambition and urgency needed to limit global warming and increasingly adapt to climate change. According to the regulatory logic of this model, these processes would create material and reputational incentives for states to articulate adequate commitments and subsequently implement them.

After the failure of the command-and-control model of the Kyoto Protocol, experimentalist scholars tended to view the Paris Agreement as a promising fresh start for climate governance.Footnote ⁸² The Agreement’s reliance on decentralized and voluntary implementation of its key goals – crucially coupled with peer review and pressure to periodically ratchet up individual states’ contributions – was seen as resembling the model of the Montreal Protocol that successfully dealt with the depletion of the ozone layer.

Given the Paris model’s reliance on transparency and periodic ratcheting up of NDCs, it would succeed only if states have material and reputational incentives to deliver on their promises and to increase their ambition in order to reduce the considerable gap between the mitigation targets to which they committed in Paris and the emissions cuts that, according to the IPCC, are needed to keep global warming between 1.5℃ and 2℃.Footnote ⁸³ However, since those incentives are largely absent in the design and the subsequent implementation of the Paris model, states’ NDCs have been grossly insufficient and there has been no real source of pressure for governments to ratchet them up as envisaged by the Paris Agreement. In practice, these gaps in the climate governance system were laid bare by the first five-year NDC stocktaking in Glasgow in 2021, where it became clear that virtually all governments had failed to implement even their plainly inadequate targets and that they had no plans to increase those targets to the levels recommended by science to avert climate catastrophe. While the agreements that resulted from the Glasgow COP failed to address these gaps, they did shorten the window for governments to propose new voluntary targets from five years to one year.Footnote ⁸⁴

With the Paris Agreement marking its tenth anniversary, the structural shortcomings of its regulatory model are now painfully clear. These shortcomings are laid bare by the collective failure of state parties to reach a trajectory that would avert dangerous scenarios of climate change: Under the current GHG emissions trajectory, the planet is on track to experience 3℃ of warming this century.Footnote ⁸⁵ Given that the central aim of the Paris Agreement is to limit warming to approximately 1.5℃, this gap between the current trajectory and the stated goal is evidence that the Paris model is in deep trouble. This conclusion is reinforced by the fact that “there has been negligible movement on NDCs since COP27,” as UNEP concluded in its 2023 Emissions Gap Report.Footnote ⁸⁶

Climate negotiators who have been deeply invested in making Paris work acknowledge this model’s failure, as of yet, to produce the material progress needed on emissions reductions and other climate goals. One legal advisor to vulnerable countries during COP negotiations concluded that, given the continued absence of sufficiently robust rules around transparency and accountability, parties to the Agreement have settled into a dysfunctional equilibrium that is, as it stands now, unable to deliver the needed ambition.Footnote ⁸⁷ As 2024 came to a close – marked by the failure of COP29, the alarming news that it was the first year to exceed 1.5℃ above pre-industrial temperatures, and the imminent withdrawal of the United States from the Paris Agreement – Elisa Morgera, the second UNSR on climate and human rights as well as an expert in international negotiations, assessed the status of the climate governance regime in refreshingly candid terms that evince the deep frustration of thoughtful insiders. “We can observe that some states are not acting in good faith in very clear ways, which is the basis of any international regime,” she said. “There is widespread disregard for the rule of international law, and also a very clear pushback on the science, and shrinking of civil spaces at all levels. Basically, the truth is out of the conversation. That is the problem – there is no space at COP for the truth.”Footnote ⁸⁸

Looking back, from the outset, three structural features were incorporated into the Paris model in a bid to ensure that greater ambition materialized over time: (1) NDCs that would ratchet up over time; (2) an oversight mechanism comprised of rules and procedures that safeguarded transparency, including the Global Stocktake; and (3) climate finance. In the years following the adoption of the Agreement, state parties failed to articulate the concrete rules and procedures needed to fully operationalize each of these essential features, ultimately rendering the model ill-equipped to produce the transparency and accountability needed to secure sufficient ambition.

In particular, the evolution of the Global Stocktake illustrates how the model has entered into a state of stasis that is well off from where it needs to be to achieve the Agreement’s stated aims. When the Agreement was adopted in 2015, there was substantial ambiguity as to how the model would be operationalized, including with respect to the Global Stocktake, which was envisioned as a process that would put pressure on states to ratchet up their emissions reductions through a transparent accounting of progress on mitigation. The dominant thinking, however, was that this ambiguity would be resolved through the implementation process.

That has failed to materialize; instead, the ambiguity has “metastasized,” in the words of a seasoned COP negotiator.Footnote ⁸⁹ With respect to the Global Stocktake, clear rules and procedures to ensure that the political realm takes into account technical information on the collective consistency of NDCs with the 1.5℃ target have not yet materialized. As a result, the stocktake process has failed to serve as a source of pressure, as originally envisaged, for states to progressively increase their climate ambition. Combined with states’ failure to pledge the needed levels of climate finance and meaningfully update their NDCs, this has produced an equilibrium wherein the international community is seriously off-track from the Paris temperature goal and yet has not yet grappled with how to get back on track.

2.4.2 Climate Litigation: Looking for Ways Forward in the Name of Paris

In retrospect, experimentalists’ enthusiasm for the Paris model was partially unwarranted. As Sabel and Victor have acknowledged more recently, while Paris moved away from Kyoto’s ineffective top-down model, it did not evolve into the central node of the climate governance regime, as states failed to develop a collaborative process of experimentation with climate solutions as well as to increase ambition backed by credible penalties against noncooperative governments. Since “the opposite of a failure does not make a success,”Footnote ⁹⁰ the Paris model has fallen considerably short of its promise to catalyze climate action. As anyone who attends the annual COP meetings can attest, climate summits have become largely ritualistic convenings whose value is measured more in terms of rhetorical statements than in effective commitments and actions to address the climate emergency.

To my mind, one of the reasons why insightful experimentalists missed some of the design flaws of the Paris model is experimentalist theory’s relative inattention to the role of bottom-up pressure from non-state actors, from social movements to litigants to NGOs. For instance, while they rightly criticized Kyoto’s top-down approach and understood the success of Paris as requiring a “two-level game” that also included pressure for compliance from below, they have largely focused on inter-state negotiations and paid limited attention to the role of the climate movement and climate litigation in exerting bottom-up pressure for states to increase their ambition and deliver on their promises on mitigation, adaptation, and loss and damage.

Elsewhere, I offer a critique of this blind spot and propose a variant of experimentalism that foregrounds bottom-up political and legal pressure for compliance in global governance regimes.Footnote ⁹¹ For the purposes of this Element, I argue that the majority of RCC suits and complaints (which focus on emissions cuts) can be understood as strategies to provide the Paris climate regime with procedural and substantive mechanisms that accelerate climate action by translating global mitigation targets into legally binding commitments at the domestic level.

Evidence from RCC cases suggests that litigants have leveraged this two-level structure of opportunities by (1) prompting courts to take the quantitative goals of the climate regime (as specified in the Paris Agreement and IPCC reports) as authoritative benchmarks to assess governments’ climate action and (2) using the norms, frames, and enforcement tools of human rights to hold governments accountable to those benchmarks – and, increasingly, to go beyond Paris by acting with greater ambition and urgency when the Paris mechanisms and goals seem to be grossly insufficient to address human violations that particularly vulnerable communities are already experiencing. As Section 3 shows, this combination characterizes the large majority of RCC cases.

With the benefit of hindsight, experimentalist scholars have also come to the conclusion that the absence of penalties for noncompliance is a design flaw that has thwarted the efficacy of the Paris regime. Although not particularly enthusiastic about litigation, some of them have come to hold a view of the role of Paris that is similar to the one I see at play in many RCC lawsuits. According to Sabel and Victor, the UNFCCC consensus-based process of decision-making that frustrates advances on climate goals is also the source of legitimacy of Paris as the “climate conscience of the world.”Footnote ⁹² Rather than taking place within the Paris legal architecture, climate action happens in the name of Paris through other institutional mechanisms, like litigation, that put the requisite pressure for compliance with climate goals on governments and corporations.

This view on the setbacks of Paris and the role of courts in helping to address them has been embraced by leading human rights tribunals. Indeed, the ECtHR, in its 2024 ruling on Verein KlimaSeniorinnen v. Switzerland, found that prioritizing climate protection over other considerations was justified, among other factors, by “the States’ generally inadequate track record in taking action to address the risks of climate change that have become apparent in the past several decades.”Footnote ⁹³ In light of this, the Court tellingly concluded that “the question is not whether, but how, human rights courts should address the impacts of environmental harms on the enjoyment of human rights.”Footnote ⁹⁴

The road leading to this conclusion was paved by more than 400 legal actions that reframed climate change as a human rights issue. The next section takes a deep dive into those cases as well as the actors and tactics behind them.

3.1.1 Evolution and Issues

Not long ago, documenting RCC cases was a relatively low-effort endeavor. As Figure 1 shows, in the mid 2010s, the number of lawsuits filed each year hovered around a dozen. As noted, the field became considerably more populated in the second half of the 2010s. As an increasing number of cases were filed in domestic, regional, and global jurisdictions, dedicated initiatives were needed to keep track of developments and trends in the field.

Figure 1

RCC cases filed since 2005.

Figure 1 Long description

The horizontal axis represents years ranging from 2005 to 2024 in increments of 1. The vertical axis represents the number of cases filed ranging from 0 to 80 in increments of 10. The data depicted is as follows: 2005: 5; 2007: 3; 2008: 1; 2009: 3; 2010: 2; 2011: 7; 2012: 4; 2013: 9; 2014: 3; 2015: 13; 2016: 11; 2017: 14; 2018: 33; 2019: 35; 2020: 53; 2021: 77; 2022: 70; 2023: 50 and 2024: 74.

One such initiative is the original database that is used in this Element. Created by the NYU Climate Law Accelerator (CLX), it tracks all rights-based climate legal actions filed before judicial and quasi-judicial bodies.Footnote ⁹⁶ The universe of cases includes a wide range of legal actions, including court challenges against governmental climate policy, petitions before domestic human rights commissions, litigation before the ECtHR, advisory opinion petitions before the ICJ and the IACtHR, and petitions filed before the UN Human Rights Committee and the UN Committee on the Rights of the Child.

Following standard practice in climate litigation research, the NYU CLX database counts a case as belonging to this ecosystem only if the petitioner or the judicial or quasi-judicial body explicitly mentions ‘right’ and ‘climate change’ in their submissions or decision.Footnote ⁹⁷ This approach may exclude cases that, while not using that specific language, substantively revolve around issues of climate change and human rights. But it has the advantage of relying on a consistent, verifiable definition that avoids the pitfalls of leaving case count to analysts’ subjective interpretation of the materials.

The first notable trend in the data is the proliferation of legal actions of this type after 2015. Indeed, the number of cases more than doubled every three years in the second half of the decade, peaking at seventy-seven in 2021. With the exception of 2023, the annual volume of litigation has remained near that peak.

What sort of disputes give rise to RCC litigation? A first approximation to this question consists in distinguishing between cases challenging climate policies and those challenging specific projects that deepen the climate emergency, such as oil, gas, and coal extraction. The majority (63 percent) of cases are complaints about climate policies. While some challenge the insufficient ambition of existing government policy (as in Urgenda and Urgenda-like cases), others demand that existing policies be enforced. The pioneering successful case of the latter sort is Leghari v. Pakistan, which the plaintiff filed in 2015 to challenge the government’s failure to carry out provisions of the country’s climate law. Similarly, plaintiffs in the Brazilian Climate Fund case demanded that the government implement a law that had created a public fund for climate mitigation programs in the Amazon region, which the Bolsonaro administration had effectively frozen.

Moreover, a number of legal actions have challenged governments’ failure to factor climate and human rights into environmental impact assessments (EIAs) when authorizing high-emission energy projects. For instance, in Earthlife v. South Africa and Save Lamu v. Kenya, environmental coalitions successfully sued their governments for omitting these impacts in EIAs that led to the authorization of coal-fired power plants.Footnote ⁹⁸ In contrast, Canadian courts ruled in favor of the government in a similar challenge brought on behalf of youth plaintiffs against the expansion of a fossil fuel pipeline.Footnote ⁹⁹

Still, it is worth noting that 25 percent of RCC legal actions challenge specific projects that generate GHG emissions that, according to plaintiffs, are incongruent with the norms and goals of the human rights and climate governance regimes. These legal challenges seek to either block those projects or condition their execution to the fulfillment of substantive or procedural standards. For instance, in 2016, two Swedish NGOs were joined by 178 citizens in a lawsuit against their government for selling a state-owned coal-fired plant to a foreign firm with a poor climate record, which allegedly violated the government’s duty of care and the plaintiffs’ rights.Footnote ¹⁰⁰ In a 2020 case filed before the East Africa Court of Justice, local and regional environmental organizations sought to overturn the Ugandan and Tanzanian governments’ authorization of the East African Crude Oil Pipeline, alleging that the GHG emissions from this major project would violate human rights and environmental norms under national and international law. Similarly, in 2017, environmental organizations challenged the construction of a third runway in Vienna’s airport for allegedly failing to adequately consider Austria’s climate change and human rights commitments.Footnote ¹⁰¹ Other cases have targeted the approval of oil exploration projects in Argentina,Footnote ¹⁰² Guyana,Footnote ¹⁰³ Norway,Footnote ¹⁰⁴ and South Africa;Footnote ¹⁰⁵ new coal mines in Australia;Footnote ¹⁰⁶ a hydroelectric power dam in Chile;Footnote ¹⁰⁷ liquified natural gas developments in Mozambique;Footnote ¹⁰⁸ and biomass energy projects in EuropeFootnote ¹⁰⁹ and South Korea,Footnote ¹¹⁰ among others.

Another way of analyzing the focus of RCC cases is to classify them by the type of issue that they revolve around. As noted, climate change is not a single governance challenge but rather a bundle of distinct issues, including climate mitigation, adaptation, and compensation (loss and damage). These are the key substantive areas of the RCC field. Figure 2 represents their relative size.

Figure 2

RCC cases by type of issue.

The predominance of mitigation cases is significant. On the one hand, the fact that nine out of ten legal actions seek to increase and accelerate GHG emissions cuts is unsurprising, as this is the key goal of climate governance. Given that emissions have continued to grow despite the 2015 Paris Agreement and the repeated and unequivocal alarms that the scientific community have sounded since, advocates have resorted to litigation as an emergency tool to prod governments (and to a lesser extent corporations) to decarbonize the world economy in time to avert the direst scenarios of a warming planet.

On the other hand, the dearth of cases on adaptation and loss and damage is puzzling in the face of the growing urgency and magnitude of these global challenges. Since it is too late to avoid dangerous levels of global warming, governments and communities around the world, especially in the most vulnerable countries of the Global South, have no option but to try to adapt to a hotter planet through measures such as putting in place defenses against floods or protecting people against extreme heat waves. Also, as the UN Secretary-General said before COP27 in Egypt, “we must also recognize that, in many places, it is too late for adaptation,” which means that we need to urgently work on “closing the finance gap for addressing loss and damage” to fund rebuilding in vulnerable countries and communities affected by impacts for which there is no adaptation.Footnote ¹¹¹

Adaptation and compensation continue to be relative blind spots for RCC litigation, just as they are for climate governance writ large. The scarcity of cases on adaptation is particularly remarkable, as human rights norms and frames lend themselves more readily to adaptation than to mitigation lawsuits. Indeed, adaptation claims deal with localized impacts on concrete individuals and communities (as opposed to planetary impacts that affect all of humanity), which are the type of violations that human rights law is best suited to address.

Also, the adaptation and loss and damage blind spots in RCC litigation are striking because they are the most pressing issues for Global South countries, which have contributed the least to global warming and yet carry the heaviest adaptation and rebuilding burdens because of the disproportionate climate harms that they experience and the fewer resources they have at their disposal to deal with those harms.

As adaptation and loss and damage goals have become more salient at COPs and other climate governance venues, and as states and corporations have continued to fall short of their duties to adequately address and fund those goals, lawsuits focusing on these issues have experienced a slight increase. For instance, in R v. Secretary of State for Environment, Food and Rural Affairs a homeowner and disability rights activist challenged the United Kingdom’s adaptation program for failing to protect them from heat waves and rising sea levels.Footnote ¹¹² As for loss and damage, four Indonesian islanders sued the Swiss cement company Holcim, seeking compensation for damages they incurred from sea level rise on their island.Footnote ¹¹³ The islander plaintiffs also seek a reduction in Holcim’s emissions and funds for adapting to climate change, as is common for loss and damage cases.

Finally, it is worth clarifying that not all RCC cases seek to further action against global warming. In fact, 11 percent of existing legal actions (fifty-two cases) challenge climate action. This figure includes four quite different types of lawsuits. First, corporations like Exxon have sued governments to oppose the latter’s climate regulations or administrative decisions, alleging that they violate their right to property, free speech, and other corporate rights (twenty-two cases).Footnote ¹¹⁴ Second, in federalist countries, actions of this sort have been initiated by states against the federal government. In Canada, for instance, Alberta and Saskatchewan challenged the federal government’s act that established carbon pricing, alleging that it overstepped federal authority because it concerned property rights and other matters of exclusive provincial concern (six cases).Footnote ¹¹⁵

Third, some environmental and human rights organizations have challenged climate mitigation projects that, in their view, violate vulnerable communities’ rights (nine cases). For instance, legal actions have been initiated on behalf of the Indigenous Sami people in Norway and the Zapotec people in Mexico against the construction of wind farms in their territories, on the basis that government agencies and corporations involved in those projects violated the Indigenous communities’ rights to culture and free, prior and informed consultation.Footnote ¹¹⁶ Cases of this sort seeking a “just transition” to a lower-carbon future are likely to proliferate as the construction of renewable energy facilities picks up.Footnote ¹¹⁷

Fourth, as we will see in the next section, some governments and corporations have prosecuted protestors demanding climate action for allegedly impinging on other people’s rights by blocking access to pipelines and pursuing other forms of direct action (sixteen cases).

3.1.2 Defendants

Figure 3 offers the breakdown of legal actions by type of target. The first notable finding is that, by far, the most common target are governments rather than corporations. This should not come as a surprise, as human rights law was developed historically to hold states accountable for human rights violations, and the norms of the climate governance regime (including Paris) also primarily apply to governments. Also, this finding is congruent with the predominance of legal actions targeting policies as opposed to projects.

Figure 3

RCC cases by type of defendant

The breakdown of issues and defendants substantiates my argument about the role of RCC litigation in climate governance. In the face of the insufficient ambition and the enforcement failures of the global climate governance regime, the large majority of cases seek to exert material and symbolic pressure on governments to step up climate action in line with the Paris goals and the international scientific consensus as reflected in the IPCC’s recommendations. To that end, the typical RCC case both leverages and pushes the boundaries of existing human rights norms by articulating legal doctrines that seek to adapt human rights law to the unique features of climate change as a governance challenge.

The other categories in Figure 3 are less predictable and point to noteworthy and even surprising developments. In previous work, I suggested that litigation against corporations was another blind spot of RCC litigation.Footnote ¹¹⁸ Until recently, only a handful of cases sought to hold corporations accountable for climate harms, despite the increasing availability of data on the historical emissions of the largest fossil fuel companies and the aggressive strategies that many of them have pursued to hide or deny climate science. This situation seems to be gradually changing, as a wide range of plaintiffs – from environmental and human rights organizations to city and state governments to public prosecutors – have launched legal actions against corporations to pressure them to align their business models with the goals of Paris and human rights law, deliver on and cease deceiving the public about their climate commitments, and compensate governments and communities for the impacts of the climate harms to which they have contributed. The result is that the proportion of rights-based litigation against only corporate defendants has almost doubled in the last two years.

The most frequent defendants are large private fossil fuel companies. In some cases, plaintiffs have sought to block energy companies’ particularly carbon-intensive or environmentally destructive projects, such as Total’s plans for a major oil project in Uganda and Tanzania,Footnote ¹¹⁹ or Shell’s plans to conduct seismic testing off South Africa’s Wild Coast.Footnote ¹²⁰ In other cases, plaintiffs have launched broader challenges to corporate policies that, by expanding fossil fuel exploration and exploitation, run counter to the goals of Paris and the International Energy Agency’s call to end the search for new oil and gas fields.Footnote ¹²¹ This is notably the case with respect to the complaint brought against Shell by Dutch environmental organizations including Milieudefensie (see Section 5).

Interestingly, recent legal actions go beyond challenging carbon majors in domestic jurisdictions. Some, like ClientEarth v. Belgian National Bank and Conectas v. Brazilian National Economic and Social Development Bank, have challenged banks that fund fossil fuel and other high-emitting companies. Others have targeted corporations in other sectors that have rarely figured into rights-based climate advocacy, despite their substantial contributions to the climate emergency. For instance, in 2021, environmental organizations from France, Brazil, and Colombia sued Casino (a French supermarket company) before a French court alleging that the company must take all necessary measures to exclude beef tied to deforestation and the grabbing of Indigenous territories from its supply chains in Brazil, Colombia, and elsewhere to comply with the French law on the corporate duty of vigilance. In addition to targeting corporate actors in the high-emission beef business, this lawsuit breaks new ground in trying to hold transnational companies accountable for the climate impacts associated with their supply chains.Footnote ¹²²

Although comprising a small fraction of RCC litigation, the sixteen cases involving criminal proceedings against protesters demanding climate action – wherein such protesters utilize rights in their defenses – should raise concern, especially considering the proliferation of new laws seeking to crack down on the right to protest against climate inaction in Europe and elsewhere.Footnote ¹²³ For instance, the Canadian province of British Columbia brought charges against climate activists who had blocked access to state-owned oil pipeline terminals,Footnote ¹²⁴ while the United Kingdom criminally prosecuted climate protestors for blocking a road in protest of the authorization of a fracking project.Footnote ¹²⁵

3.1.3 Plaintiffs

Classifying a case by type of plaintiff is not always straightforward, as many are initiated by dozens of actors of different sorts, from NGOs to youth collectives to individuals. Therefore, cases often fall under more than one category of plaintiff. For this reason, understanding the actors who pursue RCC litigation requires a more granular, qualitative approach that will be left for the second half of this section.

It is worth noting that, other than individual adults, the most frequent types of plaintiffs are advocacy NGOs (43 percent of cases) and groups of young people (14 percent). While the role of NGOs is unsurprising, the frequent participation of young people as plaintiffs is a distinctive feature of RCC litigation that cuts across countries and regions. As we will see, the pioneer cases of this sort were filed in the United States and Uganda. However, the first court ruling finding in favor of youth plaintiffs was the Colombian Supreme Court’s decision in the Future Generations case.Footnote ¹²⁶ The Court ordered the government to deliver on its commitment to reduce deforestation in the Amazon, kept supervisory jurisdiction over the implementation of the case, and declared the Colombian Amazon as a subject of rights.

Youth involvement has infused the field with moral force and bottom-up political energy. And it has pressed human rights advocates and courts to take the issue of intergenerational justice seriously and adopt a forward-looking approach to remedies, which contrasts with the more familiar, backward-looking perspective of traditional human rights thought and practice.

3.1.4 Geographic Distribution: Regions and Countries

As the field has grown, its diversity has waxed and waned. In the mid 2010s, the Asia-Pacific region was handily the global headquarters of RCC litigation, with more than one-quarter (26 percent) of cases filed there by the end of 2015. Close on its heels was Latin America and the Caribbean, representing one in every five cases (20 percent) filed through the end of 2015. Before the turn of the decade, Europe and North America trailed behind the geographic frontrunners with 16 percent and 18 percent of cases, respectively. By 2021, however, the landscape had changed markedly. More than one-quarter of cases (26.4 percent) filed through the end of 2021 were filed in Europe, partly through the replication of Urgenda-like arguments in other jurisdictions,Footnote ¹²⁷ with even more cases (27.5 percent) brought in Latin America. By the end of 2024, the field had consolidated yet further, with Europe (25.5 percent), Latin America (24 percent), and North America (22.5 percent) each competing for roughly a quarter of rights-based cases (see Figure 4). In the meantime, the sizable participation of the Asia-Pacific region has declined markedly, while regional and international cases have remained roughly the same.

Figure 4

RCC cases by region.

Although Africa currently represents only 3.4 percent of RCC litigation, it played an important role in the rise of the field. Nigeria was the site of the first-ever RCC case that was filed before a court (as opposed to a quasi-judicial international human rights body). In mid 2005, Jonah Gbemre, a representative of the Niger Delta Iwherekan community, successfully sued Shell and the Nigerian government for human rights violations stemming from the company’s long-standing practice of gas flaring in the course of gas exploration and production.Footnote ¹²⁸ While the lawsuit and the ruling of the Federal High Court of Nigeria centered on air pollution and its impacts on the rights to life, health, and the environment, they also referred to the negative climate impact of gas flaring. Moreover, in 2012, the Ugandan environmental organization Greenwatch filed the first-ever complaint focusing on climate adaptation in the Global South. Attorney Kenneth Kakuru, who would later become a judge, sued the Ugandan state for breaching its public trust and human rights duties by not taking the necessary measures to protect its citizens from floods and other climate impacts. The choice of young plaintiffs reflected the fact that the suit was developed in collaboration with OCT through the Environmental Law Alliance Worldwide.Footnote ¹²⁹

A more granular analysis of the data shows that the most active jurisdictions are the United States (ninety-four cases), Brazil (fifty-three cases), and Germany (thirty-three cases). Together, they represent roughly 38 percent of RCC litigation. It is worth delving in more detail into each of these countries, as the reasons for and the contours of rights-based climate litigation are somewhat different in each of them.

The United States is well known for its litigiousness, and climate change is not an exception to the country’s tendency to judicialize major policy issues. However, US courts are also famously impervious to international human rights arguments, which makes the abundance of rights-based climate cases an empirical puzzle.Footnote ¹³⁰ Two quite different reasons underlie this trend. First, one of the pioneer organizations in the ecosystem, OCT, has deployed a creative multi-year strategy that has entailed filing both a flagship federal case (Juliana) and similar cases at the state level. Since 2011, OCT has sued twelve states on behalf of youth plaintiffs seeking court declarations or injunctions against state governments’ policies that, in promoting fossil fuel energy, violate young people’s rights. Second, the proliferation of RCC litigation in the United States has been spurred by a trend pulling in the opposite direction: Energy companies and states have filed sixteen lawsuits against climate policies and initiatives. For instance, in 2016 Exxon sued the Massachusetts Attorney General Office arguing that the latter’s investigation into the company’s efforts to conceal the climate impact of GHG emissions violated Exxon’s free speech and due process rights.Footnote ¹³¹

In sum, the frequency of RCC cases in the United States stems from demand-side factors, that is, the dynamism of litigants requesting courts to intervene. As we will see in the analysis of the outcomes of the cases, the supply side of the field (that is, court willingness to step in) has gone in a different direction, as the conservative turn of US federal courts in recent decades and their reluctance to hear international human rights arguments have dampened RCC litigation.

This contrasts with the situation in Brazil and Germany, where both the demand for and the supply of judicial responses to the climate emergency underlie the relatively high number of cases. In both countries, human rights and environmental litigants benefit from favorable rules of standing, constitutional provisions on human rights and the environment, and judicial precedents that integrate international law into domestic law. In Brazil, an additional factor was the aggressive anti-environmentalism of the Bolsonaro government (2019–2022). Through a flurry of lawsuits, civil society organizations and political parties pushed back against policies that incentivized deforestation and rolled back climate goals, programs, and funding. Building on the Supreme Court’s ruling in Climate Fund and the catalytic role of coalitions such as the Observatory for the Climate and funding organizations like the Institute for Climate and Society (ICS), rights-based climate lawsuits exploded from just six before 2019 to fifty-three by the end of 2024.Footnote ¹³²

Similarly, Germany went from having three cases before 2020 (the year Neubauer was filed) to thirty-three by late 2024. A whopping eighteen cases were filed in 2021 alone. That year, in the wake of the Constitutional Court’s decision in Neubauer, youth plaintiffs supported by Deutsche Umwelthilfe (DUH; Environmental Action Germany) filed eleven separate lawsuits against ten German states for failing to pursue or implement ambitious climate mitigation policies. Similar to OCT’s tactics in the United States, DUH and the youth plaintiffs alleged that German states’ insufficient or nonexistent climate policies violated young people’s fundamental rights and the states’ duty to protect. Unlike in Neubauer, the Constitutional Court dismissed the eleven complaints, noting that the states were not violating the plaintiffs’ rights because they are not bound by a carbon emissions budget like the federal government.Footnote ¹³³

In previous work, I suggested that Global South jurisdictions that exhibited a combination of favorable rules of standing, a dynamic community of public interest litigants, and a tradition of judicial activism on other issue areas (such as socioeconomic rights) would become prominent sites of RCC litigation.Footnote ¹³⁴ This has turned out to be the case in countries ranging from Brazil to Mexico (eighteen cases), Argentina (twelve), Colombia (fourteen), and South Africa (nine). In a landmark case in Mexico, the Supreme Court struck down a government regulation increasing the permissible maximum ethanol fuel content, citing the potential for higher GHG emissions.Footnote ¹³⁵ Subsequent complaints have challenged a range of energy policies and regulations that would have a similar effect.Footnote ¹³⁶ In Colombia, litigants have challenged the authorization of fracking and coal mining projects, among others.Footnote ¹³⁷ Argentinian courts have been less willing to intervene in the numerous RCC cases that have been filed thus far, which have largely focused on challenging specific projects, such as offshore seismic exploration for oil.Footnote ¹³⁸

Until recently, South Africa and India were an exception to this trend. Despite their traditionally active litigation and jurisprudential traditions, and the key role of both countries in global climate governance, there were only a handful of cases in each jurisdiction, including Earthlife v. South Africa and Pandey v. India. Since 2021, the situation has changed in South Africa, where a spate of complaints has been filed. They include one of the few successful RCC lawsuits against a corporation, whereby a coalition of local communities and environmental organizations successfully challenged Shell’s plans to conduct seismic testing off of South Africa’s Wild Coast.Footnote ¹³⁹ Meanwhile, the continued dearth of cases in India is symptomatic of the inhospitable context for public interest litigation and environmental advocacy under the increasingly autocratic rule of the Modi government.

In contrast, Pakistani litigants and courts have been active participants in the RCC ecosystem. The 2015 Leghari case set an early and significant international precedent in holding a government accountable for the failure to implement climate legislation. Mansoor Ali Shah, the judge who wrote the opinion of the Lahore High Court in Leghari, went on to become a Supreme Court justice, where he joined the majority in a constitutional complaint associated with the government’s response to the massive floods of 2021.Footnote ¹⁴⁰ Agreeing with the Court that citizens affected by the flood should be able to participate in the implementation of relief efforts, Shah underscored the existential threat that global warming poses for Pakistan and called on the government to step up its adaptation efforts.Footnote ¹⁴¹

In the Global North, other than the United States and Germany, the most dynamic jurisdictions are the United Kingdom (eighteen cases), France (sixteen), Canada (twelve), Australia (eleven), New Zealand (nine), and the Netherlands (eight). Some of the most active litigants, both historically and currently, are located in the United Kingdom, including Plan B Earth, ClientEarth, and Friends of the Earth. For instance, in 2017 the environmental organization Plan B sued the UK government for failing to revise the country’s 2050 carbon emissions reduction target in light of the Paris Agreement and the international scientific consensus on climate change.Footnote ¹⁴² One year later, it took another government agency to court for approving the expansion of the Heathrow airport, alleging that it would result in a considerable increase in GHG emissions that would likely put even the insufficient 2050 target beyond reach and violate a range of human rights.Footnote ¹⁴³

France stands out as the jurisdiction with the highest percentage of cases targeting corporations. Upon closer inspection, about half of these cases have leveraged the legal opportunities offered by the 2017 law on corporate duty of vigilance to hold French corporations accountable for their contribution to climate change. Defendants include energy companies (Total and Electricité de France),Footnote ¹⁴⁴ banks (BNP Paribas),Footnote ¹⁴⁵ and supermarkets (Casino).Footnote ¹⁴⁶ Other cases, notably Notre Affair à Tous v. France, have followed the more familiar strategy of suing the government to pressure it to take further action on climate change.Footnote ¹⁴⁷

In Canada, most complaints have followed the global trend, using RCC litigation to nudge federal and state governments to increase their mitigation efforts.Footnote ¹⁴⁸ However, as we will see, a striking development is Canadian provinces’ use of litigation to oppose federal climate action or prosecute climate protesters. In Australia, RCC litigation got off to a relatively late start with a successful challenge by the environmental group Youth Verdict against the Galilee Coal Project in 2020, based on Queensland’s Human Rights Act.Footnote ¹⁴⁹ As the Australian government adopted aggressive policies promoting coal extraction and resisted calls to reduce the country’s large carbon footprint, other litigants filed complaints against coal mining projects and federal policy on behalf of youth activists, Indigenous peoples, and other plaintiffs.Footnote ¹⁵⁰ Meanwhile, New Zealand stands out as the jurisdiction where the earliest and most well-known legal complaints were filed to recognize immigrants from a highly vulnerable country (Tuvalu) as climate refugees. Although ultimately unsuccessful, one of those claims (Teitiota v. New Zealand) led to a key decision by the Human Rights Committee which left the door open for future claims of this sort.Footnote ¹⁵¹

Although less numerous than in other countries, cases from the Netherlands have had an outsize impact on the global RCC litigation ecosystem. This is largely due to pioneer challenges against the government (Urgenda) and a multinational energy company (Milieudefensie v. Shell), which set precedents that have inspired similar actions in other jurisdictions. Dutch litigants have skillfully exploited the opportunities offered by a legal system that integrates international and European human rights law into domestic law and have developed innovative legal strategies that integrate civil law and human rights law to address some of the most complex gaps of RCC litigation, from corporate responsibility for the extraction, burning, and funding of fossil fuel energyFootnote ¹⁵² to the extraterritorial impact of Dutch emissions.Footnote ¹⁵³

Finally, it is important to highlight the countries absent from these figures, particularly some of the world’s highest GHG emitters. In fact, only seven of the top twenty emitters – the United States, Germany, Canada, Mexico, Brazil, Australia, and the United Kingdom – feature prominently. In other countries, the scope conditions for RCC litigation, including conducive legal opportunity structures and the availability of mobilizing frames and resources, are constrained by several factors. These include limitations to judicial independence in authoritarian regimes (e.g., China, Russia, Iran, Saudi Arabia, Vietnam) and illiberal governments (e.g., India), as well as stringent standing rules and a preference for nonjudicial conflict resolution mechanisms (e.g., Japan).

3.1.5 Regional and International Cases

During its twenty-year life, the field has become increasingly international. Partly due to the lack of familiarity with climate change as a human rights issue and partly due to deference given to domestic jurisdictions, international human rights bodies were initially reluctant to take on RCC cases. The Inuit case, the first climate complaint filed before a regional human rights entity, ended in a disappointingly elusive decision by the IACHR.

Given the slow and cautious pace of evolution of international law, the contrast with the situation only two decades later is striking.Footnote ¹⁵⁴ In April 2024, the IACtHR held three multi-day massive public hearings on climate and human rights, with government representatives and hundreds of civil society advocates in attendance. The hearings were convened to gather information and views in preparation for the Court’s advisory opinion on the matter, which was requested by the governments of Chile and Colombia. Just as it did in its landmark 2017 advisory opinion on human rights and the environment, the Court is likely to consolidate RCC law by clarifying and helping to settle the type of legal issues that the Commission seems to have felt were intractable at the time of the Inuit petition – from the framing of global warming as a human rights issue to the concrete climate action duties that governments have by virtue of their human rights commitments.

Although regional and international RCC cases are predictably fewer (fifty-four) than domestic cases, their impact is likely to be deeper than their numbers suggest. For instance, the seven cases pending before the ECtHR at the time of writing as well as the favorable ruling in Verein Klimaseniorinnen v. Switzerland will have repercussions across a region that has inspired similar cases around the world.Footnote ¹⁵⁵

This global radiating effect has already been felt in the wake of decisions by the UN Human Rights Committee (UNHRC) and the UN Committee on the Rights of the Child. The UNHRC’s 2018 General Comment on the right to life importantly recognized that “environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.”Footnote ¹⁵⁶ In applying that doctrine to the two concrete cases that have been brought before it, the UNHRC has reached contrasting conclusions. Teitiota v. New Zealand entailed a complaint against New Zealand’s denial of refugee status to a displaced individual who alleged that, because climate-induced sea level rise would make his native island country (Kiribati) uninhabitable, his right to life would be at risk if he returned. In 2020, the UNHRC found against the petitioner, arguing that, because Kiribati would not become uninhabitable for another ten to fifteen years, there was still time for the Kiribati government and the international community to take action to avoid that outcome. Rather than addressing the substantive issue at hand (life-threatening climate impacts that are likely to lead to massive forced displacement), the UNHRC opted to postpone it. Aware that this compromise solution could soon become insufficient in the face of growing climate-induced migration, the UNHRC importantly recognized that, in the future, receiving states like New Zealand would have the obligation to grant asylum to climate refugees.Footnote ¹⁵⁷

In contrast, in its second case on climate change, the UNHRC found in favor of the petitioners, a group of native inhabitants of the Torres Strait Islands who filed a complaint challenging the Australian government’s dismal record on climate change, alleging that sea level rise and other climate impacts threatened their lives, livelihoods, and culture. Although (rather incongruously) concluding that the government had not violated the right to life of the petitioners (whose very survival is threatened by sea level rise), the Committee set a crucial precedent by framing climate change as a human rights issue and finding that Australia had violated the Indigenous petitioners’ rights to culture as well as their right to private life, family, and home.Footnote ¹⁵⁸

In 2021, the UN Committee on the Rights of the Child issued its opinion on a complaint filed by sixteen children (including Greta Thunberg) from twelve different countries against five states (Argentina, Brazil, France, Germany, and Turkey) that are among the largest carbon emitters under the Committee’s jurisdiction. Although it ultimately found that the complaints were inadmissible because the petitioners had failed to exhaust the available remedies in their domestic jurisdictions, the Committee crucially asserted states’ extraterritorial responsibility for human rights violations stemming from global warming. Indeed, it concluded that states can be held accountable for violations suffered by children both inside and outside their territories, as long as those climate impacts are predictable and can be linked to states’ actions or omissions.Footnote ¹⁵⁹

In a sign of consolidation of the field, the highest international tribunals dealing with human rights issues have been asked to intervene in RCC cases and clarify the law on the matter. For instance, in 2023, the UN General Assembly unanimously adopted a resolution seeking an advisory opinion from the ICJ on state obligations to address the widespread adverse impacts of climate change and related losses and damages to nature and people. Together with the IACtHR’s opinion, the ICJ’s pronouncement is likely to consolidate and lend international authority to some of the key RCC doctrines that have emerged from domestic jurisdictions over the last decade. Although human rights did not feature explicitly in the request for an advisory opinion to the ICJ, they were central to the arguments that many state delegations presented to the Court and were brought up in one of the four questions formulated by the justices during the December 2024 hearings.

3.1.6 Outcomes

This snapshot of RCC data leaves one key question: How are RCC cases being resolved? More than half of all RCC cases filed since 2005 (54 percent) remain pending or undecided (253 cases) (Figure 5).Footnote ¹⁶⁰ This is unsurprising given the slow nature of litigation and that many of these cases were filed in the past few years. While most pending cases have yet to see a decision on the merits,Footnote ¹⁶¹ a number of these cases (17 percent) are being considered on appeal.

Figure 5

RCC cases by outcome.

When courts have reached the merits, they have sided with pro-climate action litigants in 46.6 percent of the cases that have reached a final resolution. Winning actors in these cases include plaintiffs in pro-climate cases and defendants in anti-climate or anti-climate protest cases. Governments and corporations resisting more ambitious climate action have prevailed in 53.3 percent of cases. They include defendants in pro-climate cases and plaintiffs in anti-climate or anti-climate protest cases.

Though results have been mixed, the fact that plaintiffs have won nearly half (ninety-eight) of finalized cases is striking, given the novelty and complexity of the factual and legal claims they have advanced. In doing so, pro-climate action litigants have made meaningful inroads in crafting an increasingly favorable body of jurisprudence for climate change and human rights

It generally takes longer for pro-climate plaintiffs to win a case than defendants. Cases are often dismissed in the early stages of litigation, and RCC plaintiffs may not have the resources to appeal the decision. In contrast, for a plaintiff to succeed they typically must progress through multiple stages of litigation and multiple appellate courts.

The case VZW Klimaatzaak v. Belgium illustrates this point. After the lawsuit was filed in 2015, the parties spent three years disputing whether the proceeding should be held in French, Dutch, or both. The court of first instance eventually ruled in part in favor of the plaintiffs in 2021, holding that the Belgian authorities had violated their duty of care and the plaintiffs’ rights but declining to establish specific emissions reduction targets. In 2023, the court of appeal affirmed the lower court’s finding of rights violations but went even further by setting a specific emissions reduction target for the Belgian authorities.Footnote ¹⁶² The defendants, however, signaled their intent to appeal the decision, leaving the case formally undecided a decade after it was first initiated.

3.2.1 Actors

Like any organizational ecosystem, RCC litigation includes different species of actors who serve and have served different functions. In keeping with ecological language, I distinguish five types of actors: ecosystem pioneers, disseminators, pollinators, supporters, and poly-culturalists. Pioneers were the first individuals and organizations to arrive on the scene, metabolizing the “rawest” of available materials to advance the earliest RCC cases and legal theories. This includes, among others, CIEL and Earthjustice, both of whom had lawyers involved in the Inuit petition. Their participation in this early landmark case is especially notable, given that both organizations also played a role in the convergence of human rights and environmental governance, demonstrated by their push, with others, for the inclusion of human rights language in the Paris Agreement.

Other ecosystem pioneers include the organizations that filed RCC lawsuits in the mid 2010s, including OCT (United States), Urgenda Foundation (Netherlands), Plan B (United Kingdom), Earthlife Africa (South Africa), Greenpeace (the Philippines and other countries), and Dejusticia (Colombia) as well as individuals like the lawyers behind the Leghari case in Pakistan. These actors were often professionally and personally connected, with ideas flowing between them in a series of organic as well as intentionally planned encounters.Footnote ¹⁶³ As the lawyer Roda Verheyen has observed, for example, “every active lawyer in Europe taking on a climate case knows each other.”Footnote ¹⁶⁴ Similarly, an attorney who led climate cases on behalf of young people in the United States mentioned that her organization was in close contact and exchanged tactics with Greenwatch lawyers in Uganda, who went on to file a similar case in that country in 2012.Footnote ¹⁶⁵ Some of the pioneer actors leveraged their global organizational structure to try out cases in multiple jurisdictions. This is notably the case of Greenpeace, which has filed and supported cases across a host of jurisdictions, including Indonesia, the Philippines, Norway, Germany, Austria, Luxembourg, Spain, Mexico, the Netherlands, Finland, Italy, and Argentina.Footnote ¹⁶⁶

Disseminators took the fertile openings created by their predecessors and expanded their range. In other words, these actors sought to replicate and add to the strategies of early RCC cases in other jurisdictions, adapting tested legal theories to the particularities of the jurisdiction.Footnote ¹⁶⁷ For instance, the Climate Litigation Network played a notable role in facilitating the replication of the general theory of the Urgenda case in other European jurisdictions in particular.

Other organizations also actively sought to plant the seeds of early RCC cases in new jurisdictions. For example, Cordelia Bähr, one of the lawyers behind Verein KlimaSeniorinnen v. Switzerland, noted that “the inspiration was the Urgenda decision in the Netherlands. And I was asked by Greenpeace to find out whether we could do something similar in Switzerland as well.”Footnote ¹⁶⁸ Anne Julie Asselin, one of the attorneys behind Environnmenet Jeunesse v. Canada, echoed the inspiration of Urgenda while also pointing to the influence of the wave of children’s rights cases filed in the United States.Footnote ¹⁶⁹ Other lawyers, especially those located in the Global South, found inspiration in the Leghari v. Pakistan and the Future Generations v. Colombia rulings.Footnote ¹⁷⁰ It is important to emphasize here that the flow of ideas between Global North and Global South jurisdictions have gone in both directions. For instance, Greenpeace translated into English the Colombian Supreme Court’s ruling in the Future Generations case and attached it to their submission in the Greenpeace Nordic Association v. Norway case that challenged oil exploration in the Arctic.Footnote ¹⁷¹

Field pollinators thread together an otherwise fragmented field, promoting the relational ties that enable denser and better-connected networks of practice and thus facilitating the consolidation of the field.Footnote ¹⁷² Pollinators have connected players in the field, offering spaces for dialogue and cross-jurisdictional learning and sharing. They have also provided databases and strategic research that allow for the quick absorption of lessons from one jurisdiction to another. Such hubs include Columbia University’s Sabin Center for Climate Change Law, LSE’s Grantham Institute on Climate Change and the Environment, and the Latin American and Caribbean Climate Litigation Platform hosted by the Interamerican Association for Environmental Defense (AIDA).

In addition to producing research and facilitating connections, some actors in this category operate as litigation incubators. Catalyst hubs like NYU’s Climate Law Accelerator (CLX) and Oxford’s Climate Litigation Lab intentionally leverage the public goods they produce – from databases and case analyses to academic publications and training programs – to expedite cross-pollination among organizations and jurisdictions and support new cases.

Finally, field supporters have provided the field with the resources that have nurtured legal actions. There are two dominant sub-types of supporters: (1) funders and (2) scientific and technical experts.

Funders were few and far between in the early days of the ecosystem. As the rights framing of climate change became more popular and early cases served as proof of concept, funders increasingly stepped in. They included well-established, multipurpose philanthropies such as the Rockefeller Brothers Fund and Open Society Foundations as well as newer ones that were established specifically to support climate legal action, such as the Foundation for International Law for the Environment (FILE) and Brazil’s ICS. In addition to financial support, funders like FILE and ICS operated as field catalysts by bringing together grantees and encouraging cross-learning and collaboration among them.

The increased availability of funding and connections helped provide the resources that were a precondition for the proliferation of this type of legal action.Footnote ¹⁷³ This was evident, for instance, in the first convening of nearly fifty Brazilian climate litigation organizations, which took place in Rio de Janeiro in mid 2022. Organized and funded by ICS, the conference featured discussions of key national and international legal precedents, panels on climate science and policy, and strategic conversations about opportunities and priorities for future cases. Having participated in the much smaller and preliminary meetings on prospects for climate litigation in Brazil in 2016 and 2019, I was struck by the richness of the discussion in Rio and the number and diversity of participants. Only three years after the second of those meetings in São Paolo, participants from NGOs as well as academic and social movement circles spoke a common legal language that took a page from ongoing litigation in the country as well as leading cases in other jurisdictions. In a sign of organizational strength, many of the organizations in attendance had joined a nationwide climate-action coalition – the Observatory for the Climate (OC) – that has functioned as a domestic pollinator, as its key role in the Climate Fund case demonstrates. Although I collaborated with OC, ICS, and others to organize numerous online workshops on climate litigation for dozens of Brazilian organizations during the height of the pandemic, I could not have anticipated that they would go on to file nearly fifty RCC cases in the early 2020s, making Brazil the second most active jurisdiction in the field.

With respect to the second sub-type of supporting actors, from the earliest days of this litigation ecosystem, scientists and other experts have played a fundamental role. This is perhaps unsurprising as the success of most RCC cases is predicated on the availability of evidence that proves harm and links it to government or corporate actors. In practice, climate attribution science has been a key ingredient in RCC litigation.Footnote ¹⁷⁴ But beyond the technical inputs provided as evidence, scientists and other experts have actively participated in the litigation design process, helping to shape the substance of the claims as well as the remedies requested based on the state of the best available science. Scientific partners in RCC litigation have ranged from individuals to organizations like the Union of Concerned Scientists (UCS).Footnote ¹⁷⁵

Finally, as the ecosystem of RCC litigation took on a more stable form, advancing from a handful of early cases to a global legal trend, organizations across an expanded range of themes and institutional niches – from civil rights and women’s rights to Indigenous rights and rights of nature – have pursued their own RCC cases. These poly-culturists have taken the opportunities, lessons, and strategies offered by earlier RCC cases and embedded them in other related areas of rights-based legal action to pursue climate-related action. For instance, organizations working on corporate accountability have joined the field by filing RCC cases against banks that support GHG emission-intensive projects, as Conectas did by suing the Brazilian Bank for Economic and Social Development in 2022 and as Oxfam did in France in 2023 by co-filing a case against BNP Paribas.Footnote ¹⁷⁶ With this widespread adoption, RCC litigation crossed the threshold of emergence and bears the markers of a stable, yet continually adapting, ecosystem of practice.

3.2.2 Networks and Collaborations

Moving from actors to relations among them, I distinguish two key traits of the networks and collaborations that underlie the evolution of the RCC ecosystem: information sharing among actors and symbiotic relations between social movement organizations and litigators.

4.1.1 Climate Change Is a Matter of Human Rights

Beginning in the mid 2010s, pioneering decisions began to affirm what is now the prevailing view: Climate impacts can generate cognizable human rights violations, and governments and other actors can be held legally accountable for such violations. One of the earliest decisions to conclusively link climate change to human rights impacts, including the potential for justiciable rights violations, was Leghari v. Pakistan. In Leghari, a Pakistani farmer argued that the government’s failure to implement its climate change legislation generated impacts that infringed on fundamental rights. The Lahore High Court agreed, explaining that “climate change is a defining challenge of our time and has led to dramatic alterations in our planet’s climate system.”Footnote ²⁰⁶ For the court, human rights provided the standards by which to assess government behavior, asserting that the “right to life, right to human dignity, right to property and right to information under … the Constitution read with the constitutional values of political, economic and social justice provide the necessary judicial toolkit to address and monitor the Government’s response to climate change.”Footnote ²⁰⁷ Applying the human rights framework to the allegations of governmental climate inaction, the court ultimately found that “the delay and lethargy of the State in implementing the [climate change framework legislation] offends the fundamental rights of the citizens which need to be safeguarded.”Footnote ²⁰⁸

Similarly, the Supreme Court of Colombia considered the government’s failure to stem deforestation in the Amazon an infringement of the youth plaintiffs’ fundamental rights in Future Generations v. Ministry of the Environment and Sustainable Development.Footnote ²⁰⁹ Before reaching that conclusion, the court commented on the profound entanglement between human rights and the environment and how environmental degradation, which includes climate change, threatens the most fundamental of human rights as it “gradually depletes life and all its related rights.”Footnote ²¹⁰

As this body of jurisprudence has evolved, the characterization of climate change as a major human rights issue has become commonplace. The Philippines Commission on Human Rights, in its seminal Carbon Majors Inquiry, spelled out the widespread impacts of climate change on human rights, naming it “the greatest human rights challenge of the 21st century.”Footnote ²¹¹ Indeed, climate change “directly and indirectly impacts the whole gamut of human rights under international law.”Footnote ²¹²

The human rights framing of climate change reached its zenith with the Brazilian Climate Fund case, where the Supreme Court deemed treaties on environmental law, including the Paris Agreement, as “a species of the genus human rights treaties and [which] enjoy, for this reason, supranational status.”Footnote ²¹³ In other words, environmental protection – including climate protection – is a core element of human rights law.

4.1.2 Climate Change Presents a Justiciable Question

Over time, though several courts continued to find procedural reasons to dismiss cases before reaching the merits, the majority view shifted such that climate change as a subject matter was not considered off limits for judicial review. Not only are courts not closed to climate issues but there is also increasing recognition of instances in which courts have a duty or obligation to resolve these types of claims. The earliest and still perhaps the clearest articulation of this view can be found in the Dutch Supreme Court’s ruling in Urgenda. The Court rejected the government’s argument that the climate policy is a political issue, that the power to determine GHG emissions cuts lies only with the executive and the legislature, and that, therefore, the matter is off limits for the judiciary. The Court acknowledged that, in principle, this is indeed “a power of the government and parliament” and that “they have a large degree of discretion to make political considerations that are necessary in this regard.”Footnote ²¹⁴ However, such power is not unlimited, nor can it be exercised arbitrarily. Therefore, “it is up to the courts to decide whether, in availing themselves of this discretion, the government and parliament have remained within the limits of the law by which they are bound.”Footnote ²¹⁵ Put differently, international and domestic law, including human rights law, set the justiciable boundaries within which the elected branches of government have latitude to determine the details of climate policy.

Courts have asserted this view even in cases where they have found for the respondent government. For instance, in Friends of the Irish Environment v. Ireland, the High Court of Ireland held that, “while the court should be vigilant in ensuring that it does not trespass upon the Executive power of State, nevertheless, consistent with its constitutional functions, the court should also be slow to determine that an issue is not justiciable and therefore excluded from review.”Footnote ²¹⁶ The Court ultimately concluded that the Irish government had stayed within this margin of appreciation with the climate mitigation policies it established through its National Mitigation Plan.

This does not mean that there is full jurisprudential agreement on the issue of justiciability. For example, some courts in countries such as the United States have tended to take a more deferential approach to policymakers. As we will see in the discussion of standing, in cases such as Juliana v. the United States, a majority of judges concluded that courts are not equipped to redress climate harms without impinging upon the realm of political and policy issues that, in their view, is the sole purview of other branches of government.

4.1.3 The “Common Ground” of RCC Law: Ambition and Urgency

As an initial matter, courts tasked with resolving RCC cases must determine what legal norms, doctrines, and frameworks apply to the claims raised. In response, courts have consolidated an approach that is similar to the “common ground” doctrine articulated by the ECtHR. Within the jurisprudence of the ECtHR, the common ground includes not only international human rights treaties but also other “elements of international law,” state interpretations of these elements, and state practice reflecting common values.Footnote ²¹⁷ Accordingly, as the ECtHR laid out in Demir and Baykara v. Turkey,

In the context of RCC litigation, courts have proceeded in a similar manner to identify the applicable sources of legal norms and doctrines. International and regional human rights instruments have been incorporated into this common ground as well as, interestingly, core features of the international climate regime. Courts have repeatedly identified both the reports of the IPCC and the Paris Agreement as especially relevant sources of law and norms for the adjudication of climate and rights claims. The former represents the best available science on climate change. The latter establishes targets and standards on climate change agreed to by the vast majority of states, in particular the collective temperature target of “holding the increase in the global average temperature to well below 2℃ above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5℃.”Footnote ²¹⁹ Together, they provide benchmarks that courts have actively used to understand the scope of state and corporate obligations on climate change.

Crucially, in concrete cases, courts have extracted legally binding consequences from the IPCC and Paris standards even while acknowledging that those standards are not binding per se. In Urgenda, for example, the Dutch Supreme Court gave normative power to those sources in determining the “fair share” of GHG emissions cuts that the Netherlands was obliged to contribute to climate action. For the Court, “agreements and rules that are not binding in and of themselves may also be meaningful … This may be the case if those rules and agreements are the expression of a very widely supported view or insight and are therefore important for the interpretation and application of the State’s positive obligations” under the European Convention on Human Rights. As discussed in Sections 1 and 2, translating the nonbinding rules of the global climate regime into binding rules at the domestic level is one of the fundamental roles that the “rights turn” in climate litigation has played in the climate governance regime.

In Earthlife Africa Johannesburg v. Minister for Environmental Affairs, for example, the petitioner environmental organizations challenged the South African government’s failure to consider climate change impacts in its decision to issue an environmental license for the construction of a new coal-fired power plant. In its 2017 decision, the High Court of South Africa (Gauteng Division) concluded that the government had erred in failing to consider climate impacts and pointed to the UNFCCC as highly relevant to the interpretation of the government’s obligations. South African law, according to the Court, had to be “interpreted consistently with international law,” which meant that international climate agreements – including specific provisions of the UNFCCC cited by the Court – “are relevant to the proper interpretation” of this core statute of South African environmental law.Footnote ²²⁰

The articulation and consolidation of this essential common ground across RCC cases represents a significant convergence of environmental protection, human rights, and climate governance. Indeed, courts around the world have adopted an integrated reading of the international human rights and climate change regimes, recognizing that the relevant norms and doctrines that must guide state and corporate action on climate change emerge from the interplay between these two governance regimes.

Importantly, the ITLOS adopted this integrated approach in its 2024 advisory opinion. ITLOS rejected the argument put forth by high-emitting states – an argument they later reiterated during the ICJ proceedings – that the Paris Agreement serves as lex specialis with regard to climate change, thereby precluding the application of other international agreements, such as the UN Convention on the Law of the Sea (UNCLOS), which imposes state obligations for preserving the climate system. Although the advisory opinion focused on UNCLOS, ITLOS’s conclusion that the Paris Agreement does not supersede UNCLOS aligns with the common ground doctrine and is likely to be extended by other courts and plaintiffs to human rights agreements.Footnote ²²¹

This approach has given rise to a range of doctrines that address the key challenges of the climate emergency. Before proceeding to the detailed analysis of those doctrines, it is worth highlighting two cross-cutting features that emerge from the integrated reading of RCC law sources: the ambition and the urgency of climate action.

Ambition refers to the scale and depth of action taken to address the climate emergency, including with respect to GHG emissions as well as adaptation to inevitable impacts. The Paris Agreement contains two primary features that speak to the ambition with which states must act. The first is the collective temperature target. The second is the requirement that states act with their “highest possible ambition”Footnote ²²² – a qualitative statement that helps define the quanta of GHG emissions a particular state is obliged to mitigate. While states are required under the Paris Agreement to report their commitments to climate action – through their NDCs – and are collectively accountable for achieving the Paris temperature goal, individual state commitments to reduce GHG emissions are not legally binding. In other words, the boundaries laid down by the Paris Agreement around ambition are not, by themselves, directly enforceable.

This is where the human rights regime has come into play, reinforcing these boundaries around ambition through the application of legally binding and enforceable state duties. Climate change triggers the gamut of states’ obligations to protect and advance human rights as well as redress violations. Courts and quasi-judicial bodies have looked to the international consensus embodied by the Paris Agreement to specify the link between climate change and human rights. Courts and other observers have understood that warming past the Paris temperature target risks impacts and harms so egregious as to be substantively unacceptable from a human rights perspective. This opens the possibility of issuing enforceable remedies that direct governments and corporations to take sufficiently ambitious climate action, including steeper reductions of GHG emissions. By linking the benchmarks set by the climate regime to the enforcement mechanisms of the human rights regime, the latter helps close the accountability gap of the former.

With respect to action on climate change, urgency refers to the time frame in which states and others must act. The primary temporal boundary set by the Paris Agreement is the requirement that states’ commitments to reduce GHG emissions through their NDCs represent a “progression over time.”Footnote ²²³ While providing some guidance as to how state climate action should evolve, it has substantial gaps. For example, within this framework, it would be possible to offload the bulk of emissions reductions to future generations while still representing a progression over time. Human rights norms and law help fill these gaps.

Compliance with human rights duties and norms requires distributing emissions reductions equitably over time and across generations. As with ambition, the human rights regime reinforces the climate regime with regard to urgency, adding specificity to the time frame in which states must act and enhancing accountability to it.

4.2.1 Standing

In the early days of rights-based climate litigation, cases would often fail for lack of standing. In recent years, however, courts have increasingly offered analyses of standing that have allowed claims to proceed to the merits. Courts have developed more flexible understandings of the various factors that comprise standing which have increased the likelihood that courts will ultimately recognize standing in a particular case. Nevertheless, many courts still apply a more traditional understanding of this requirement, which means that RCC claims are still not infrequently dismissed due to a lack of standing.

This section will examine how tribunals and quasi-judicial bodies have understood the various components that constitute standing – namely, particularized harm, imminence, and redressability – in the context of RCC cases. Particularized harm refers to the individualized harm a plaintiff in a case must prove they have experienced, while imminence denotes the time frame in which a plaintiff is expected to experience a threatened harm. Redressability, meanwhile, requires plaintiffs to prove that the court is capable of providing a remedy that relieves the harm.

4.2.2 Individual State and Corporate Responsibility for Climate Action: The Fair Share Doctrine

Greenhouse gases emitted somewhere contribute to global warming everywhere. This is the essential feature of the climate emergency that renders it a global collective action problem: No single country can reduce GHG emissions enough to prevent dangerous scenarios of global warming without emissions reductions from other countries.

Governments invariably invoke this as a shield against individual responsibility for climate harms. Countries from big (Brazil) to small (the Netherlands) and from high-emitting (United States) to low-emitting (Pakistan) have argued that individual accountability through litigation is inappropriate given that a fundamentally planetary challenge cannot be solved individually. Government defendants typically proffer one or both of the corollaries stemming from this view: (1) If they stop emitting or reduce their emissions more swiftly, another state or actor will fill the gap (a line of reasoning known as the “drug dealer’s defense”); and (2) individual liability is inappropriate because it would only constitute a “drop in the bucket” and thus won’t redress the problem of global warming.

As a rebuke to this line of reasoning, courts gradually have developed legal doctrines that affirm individual state and corporate responsibility for climate-induced human rights violations. Specifically, judicial and quasi-judicial bodies have advanced the “fair share” and duty of cooperation doctrines in order to enforce individual obligations to reduce GHG emissions as well as reinforce the collaboration that underwrites the efficacy of the international climate regime. The following sections examine these doctrines in turn.

4.2.3 The Evolution of Climate Change: Irreversibility and Intergenerational Impacts

The relationship that climate change has to time has presented a particularly thorny and ongoing challenge for litigants and courts. Climate change compounds over time, with impacts that increase as each year elapses. Thresholds in the climate system, known as tipping points, raise the prospect of widespread ecological damage incapable of reversal in time frames relevant for human beings. GHG emissions are cumulative and themselves potentially irreversible in time frames relevant for the standard human generation – CO₂ remains in the atmosphere for about 100 years before falling to Earth, creating locked-in impacts. And none of this unfolds in a vacuum: To the extent that present action guarantees future outcomes, it is young and future generations – those with the least ability to influence current decision-making – that will experience the brunt of these escalated, locked-in impacts.

All these temporal dimensions of the climate emergency raise serious issues for courts used to adjudicating past or present harms without locked-in distributional effects over time. Indeed, many of the doctrines and tools that courts have developed to assess current and threatened infringements of rights come under serious stress when dealing with the unique temporality of climate change.

One such tool is the doctrine of imminence, which was explored earlier in the discussion on standing. In this section, I focus on two other jurisprudential fronts that have sought to address the evolution of climate change over time: doctrines on irreversibility and doctrines on intergenerational justice.

4.2.4 The Geographic Scope of Climate Change and Human Rights: Territorial and Extraterritorial Obligations

One of the defining features of climate change is that it fails to respect territorial boundaries. GHG emitting activities located squarely within one territory can contribute to climate-induced harms in another territory entirely. This presents a major challenge for RCC adjudication, as courts typically affirm extraterritorial obligations in only a very limited set of circumstances.

In contrast to the doctrines on standing, fair share contributions, and the temporal aspects of climate change, which have all tended to evolve in order to meet the legal challenges of climate change, courts have been more reluctant and have taken a split approach with regard to cross-boundary effects. Some courts have affirmed state or non-state actors’ extraterritorial obligations in the context of climate change, while others have expressed skepticism that such a finding is possible. Meanwhile, other courts have responded to the territorial challenges posed by climate change by focusing their legal reasoning on harms experienced by plaintiffs within the territorial boundaries of the court, in effect avoiding the question of extraterritorial obligations.

5.2.1 The Climate Fund Case

While in power, the administration of Brazilian president Jair Bolsonaro pursued an aggressive anti-environment agenda. On multiple fronts, his administration attempted to take apart the pillars of Brazilian environmental law while also encouraging the illegal incursion of mining and agriculture into the Amazon forest.Footnote ²⁹¹ One such casualty of this agenda was the Climate Fund, the financial mechanism established to funnel funding to projects and activities that support climate mitigation and adaptation in Brazil. In 2019 and 2020, the Fund laid dormant, as the Bolsonaro administration deliberately neglected to formulate the necessary annual plans and failed to allocate funds. This undercut the primary pathway for the Brazilian government to fund the types of activities that would ensure their compliance with their domestic and international climate commitments.

In response, a coalition of Brazilian political parties, working with NGOs, filed suit against the federal government. In PSB v. Brazil (the “Climate Fund case”), the petitioners argued that the effective freeze on the Climate Fund violated, among other constitutional rights, the right to a healthy environment. According to the plaintiffs, the dormancy of the Fund breached the state’s obligations under the Paris Agreement, which requires that states implement measures consistent with the climate commitments they have made thereunder.

On June 30, 2022, the Brazilian Federal Supreme Court ruled in favor of the plaintiffs. The Court found that the government had erred in ignoring a clear mandate of the legislature and had failed to satisfy its constitutional obligation to mitigate climate change through the Climate Fund.Footnote ²⁹² Moreover, the state had failed to avoid regression in environmental protection, which further justified judicial intervention.Footnote ²⁹³ The Court ordered the government to undertake administrative measures to reactivate the operation of the Fund, prepare and present appropriate annual plans for the distribution of the Fund’s resources, and refrain from placing new contingencies on resources from the Fund.Footnote ²⁹⁴

The political context colors any discussion of the impacts resulting from this decision. Although the ruling was published at the end of the Bolsonaro administration in September 2022, the judgment was not affirmed on appeal until May 2023. By that time, Luiz Inácio Lula da Silva prevailed over Bolsonaro in a highly contested election, marking Lula’s third term in the office of the presidency. Lula’s ascension to the presidency represented a significant political realignment, including with respect to environmental and climate policy. This political transition shaped the implementation trajectory of the Climate Fund case.

5.2.2 Held v. Montana

In the US state of Montana, a paradox at the heart of state environmental policy reigned supreme: A limitation in a state energy policy, the Montana State Energy Policy, expressly prohibited state agencies from considering climate change in their environmental reviews, and yet, a right to a clean and healthful environment is enshrined in the state constitution. Targeting this paradox, in 2020, sixteen youth plaintiffs, with support from OCT, challenged this limitation, alleging that it violated their state constitutional right to a clean and healthful environment by propping up a fossil fuel-based energy system driving the climate emergency. The plaintiffs argued that the state’s policy infringed upon their rights to safety and health, as well as their rights to individual dignity and equal protection of the law. Finally, according to the plaintiffs, the state’s policy contravened the public trust doctrine by unlawfully depleting essential natural resources like rivers, lakes, wildlife, and the atmosphere.

On August 14, 2023, the Montana First Judicial District Court ruled for the youth plaintiffs. According to the court, the plaintiffs “have a fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life-support system.”Footnote ²⁹⁵ The policy restricting consideration of climate impacts violates this constitutional right, among others. The court permanently enjoined the policy limiting consideration of climate impacts and permanently enjoined another law (SB 557) barring remedies for challenges based on climate change, as it violated the legislature’s duty to provide remedies for the protection of the right to a clean and healthful environment.Footnote ²⁹⁶ After the state of Montana appealed the ruling, the Montana Supreme Court upheld it in December 2024.

5.2.3 Milieudefensie v. Royal Dutch Shell

Though the global body of rights-based climate cases is still heavily skewed toward those targeting governments, there is a growing subset of cases that seek to address corporate contributions to the climate emergency. One such case is Milieudefensie v. Royal Dutch Shell, one of the first RCC cases to find that a corporation has enforceable duties to reduce GHG emissions.

In 2019, a group of NGOs and concerned citizens filed suit against Royal Dutch Shell in The Hague District Court, arguing that the company’s contributions to climate change violated a duty of care found in the Dutch Civil Code. According to the plaintiffs, this duty of care had to be interpreted in accordance with international human rights law and soft law instruments endorsed by Shell (e.g., the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises). Importing these norms and standards into the duty of care, the plaintiffs argued that Shell’s emissions constituted an unlawful act and requested that the Court order Shell to reduce its emissions, among other steps to tackle climate change.

On May 26, 2021, The Hague District Court issued a landmark ruling, agreeing that Shell was required under applicable law to reduce its GHG emissions. The Court found that Shell was obligated to comply with an unwritten duty of care emanating from the Dutch Civil Code, the content of which was informed by the Paris Agreement, the reports of the IPCC, and soft law like the UN Guiding Principles directing corporations to respect human rights.Footnote ²⁹⁷ The Court ordered Shell to reduce its emissions by 45 percent relative to 2019 across all of its activities by 2030.Footnote ²⁹⁸ To comply with this ruling, the fossil fuel company could draw from Scope 1, 2, and 3 emissions, so long as in the aggregate total emissions were reduced by 45 percent.Footnote ²⁹⁹

On November 12, 2024, however, The Hague Court of Appeal partially annulled the lower court’s groundbreaking ruling. Confirming the lower court’s finding that Shell indeed has an obligation to reduce its GHG emissions, the Court of Appeal nonetheless held that it could not find, based on the Dutch Civil Code’s unwritten and general social standard of care, that Shell has an obligation to do so by a certain, specific percentage. The Court of Appeal’s decision therefore overturned the lower court’s provisionally enforceable mandate that Shell reduce its GHG emissions by 45 percent relative to 2019 by 2030. Consequently, Shell and other carbon majors may indeed have an obligation to reduce emissions – but the obligation’s scope remains undefined and its enforceability unproven.

5.2.4 Neubauer v. Germany

In February 2020, a group of German youth lodged a formal legal challenge to Germany’s Federal Climate Protection Act with the Federal Constitutional Court, arguing that its failure to adequately specify a 2030 emissions reduction target and a comprehensive pathway to a low-emissions future infringed upon their constitutional rights. Those rights include the right to a future consonant with human dignity and the right to life and physical integrity. Given these alleged infringements, the plaintiffs asked the Court to require the government to set more ambitious emissions reduction targets.

On April 29, 2021, the Constitutional Court issued its ruling which contains one of the most sophisticated analyses of intergenerational responsibilities and duties in the global body of RCC jurisprudence. The Court found that the constitution’s “intertemporal guarantees of freedom” prevented present generations from offloading emissions reductions such that younger generations would be disproportionately forced to deal with them in the future.Footnote ³⁰⁰

According to the Court, the constitution requires the government “to treat the natural foundations of life with such care and to leave them in such condition that future generations who wish to carry on preserving these foundations are not forced to engage in radical abstinence. It is thus imperative to prevent an overly short-sighted and thus one-sided distribution of freedom and reduction burdens to the detriment of the future.”Footnote ³⁰¹ Having established that the emissions reduction schema established by the legislation threatened fundamental rights, the Court ordered the German legislature to specify emissions reductions for the year 2031 and onward by no later than December 31, 2022.Footnote ³⁰²

We now turn to the question at the heart of this section: What are the impacts of rights-based climate litigation? In line with the illustrative nature of this section, the following section is organized by types of impact. I use the distinction between direct and indirect impacts as the organizing grid for the discussion and divide each of those types into material and symbolic impacts. Under each section, I draw on evidence from the four case studies – and, occasionally, from other cases – to illustrate the workings of each type of impact in turn.

5.3.1 Direct Material Impacts

Among other functions, RCC litigation works to achieve the aims it specifically articulates, meaning in practice the remedies it requests. RCC litigation generally seeks more urgent and ambitious climate measures as well as measures that redress the human rights impacts of climate change, often on particular groups or populations.

Climate science, especially attribution science, has played an important role in shaping the substance of the legal claims articulated and pursued – and thus the material outcomes of cases themselves. This includes with respect to the temperature targets advocates say government and corporate action must respect. Litigators and, consequently, judges tend to use as the relevant standard the temperature target set by the 2015 Paris Agreement, which reflects both the available climate science and political compromise.

Beyond prompting more ambitious climate measures, RCC litigation has served as a tool to translate scientific recommendations into binding legal rules, with material impacts on the standards applied to climate action. Indeed, some involved in the law-science interface have observed a symbiotic relationship between RCC litigation and climate science, noting that they have evolved in relation to each other, as litigation has been structured around advances in science and as science generates increasingly detailed, litigation-relevant insights that many courts have incorporated into their rulings.Footnote ³⁰³

Despite some notable victories, not all RCC cases end in rulings for the pro-climate action plaintiffs, which means the impact according to this metric is mixed. But what about cases in which the court indeed issues rulings directing defendant governments or corporations to change their policy or behavior?

The cases detailed in this section all offer insight into this question. In Neubauer, the German Constitutional Court ordered the government to set more specific and near-term emissions reduction targets, which it quickly did, in one of the clearest examples of direct material impact on policy in RCC litigation. When the decision was issued, Angela Merkel’s administration was coming to a close. As a result, the German media assumed that the revisions to the climate law would fall to the next government;Footnote ³⁰⁴ the Merkel administration, however, moved quickly to present a new law that complied with the terms of the Neubauer decision.

Approximately two weeks after the court issued its judgment in Neubauer, the federal government unveiled a climate law with revised GHG emissions reduction targets, committing to reducing emissions by 65 percent by 2030 (previously 55 percent) and by 88 percent by 2040 (previously undefined). The revised law also moved up the date for climate neutrality, committing to achieving it by 2045 – five years earlier than initially stated.Footnote ³⁰⁵ The new targets laid out by the revised legislation are now also subject to “continuous monitoring” and compulsory bi-annual reporting.Footnote ³⁰⁶ By June 25, 2021, the amended law received final approval from the Bundestag and the Bundesrat.Footnote ³⁰⁷ To support the goals laid out in the revised law, the federal government approved 8 billion euros in funding for decarbonization and other mitigation measures.Footnote ³⁰⁸

In the aftermath of the Brazilian Climate Fund case and also coinciding with the change in administration, the operations of the Climate Fund unfroze – in terms of both the administrative management of the Fund and the actual disbursement of funding for climate projects. Under the Bolsonaro administration and prior to the Climate Fund decision, the Managing Committee of the Climate Fund failed to convene for a whopping seventeen months.Footnote ³⁰⁹ In stark contrast, the inaugural meeting of the reconstituted Managing Committee was held only eight months into the Lula presidency and a mere three months after the case was affirmed on appeal.Footnote ³¹⁰ In this new era of the Climate Fund, discussions of the Managing Committee – the composition of which has been expanded to include civil societyFootnote ³¹¹ – are grounded in science as well as a broader array of economic, social, and environmental indicators, which allow for more holistic decision-making.Footnote ³¹² Beyond the administration of the Fund, the key metric of impact lay in the disbursement of funding. Prior to the ruling, in 2019, the Managing Committee failed to disburse the entirety of its resources, while the government also declined to allocate any new resources to the Fund.Footnote ³¹³ In contrast, during the inaugural meeting of the reconstituted Managing Committee, the president of the Brazilian Development Bank (BNDES) announced a record contribution of R$10 billion to the Climate Fund for 2024.Footnote ³¹⁴

Milieudefensie v. Shell illustrates some of the limitations to the direct material impacts of RCC rulings. In Milieudefensie, The Hague District Court ordered Royal Dutch Shell, a fossil fuel company, to reduce its GHG emissions across its various enterprises. Shell did not comply, despite publicly recognizing that “the decision is immediately enforceable against Shell and should not be suspended pending an appeal.”Footnote ³¹⁵ According to members of the Milieudefensie litigation team, the tenure of the new Shell CEO, Wael Sawan, was marked not only by noncompliance with the rulingFootnote ³¹⁶ but also an effort to reframe the ruling as riddled with inequities.Footnote ³¹⁷ Indeed, Shell’s own documents describe elements of the court’s orders as “just not feasible – or even reasonable – to expect Shell, or any single company, to achieve.”Footnote ³¹⁸ Moreover, in an apparent effort to double down on its intended noncompliance, Shell announced its intention to move its headquarters from the Netherlands to the United Kingdom and drop “Royal Dutch” from its name only a few months after the lower court ruling.Footnote ³¹⁹ Though these changes were bound up in a larger effort to enhance the appeal of the company’s shares, the pressure stemming from the case and changing public opinion also played a significant role.Footnote ³²⁰ Subsequently, the reversal of the ruling by The Hague Court of Appeal made the issue of compliance moot.

In sum, the case studies demonstrate that RCC litigation can have significant direct impacts on policy. However, the extent to which these policy changes ultimately lead to actual emissions reductions remains an empirical question that has yet to be thoroughly explored in the literature.Footnote ³²¹

5.3.2 Direct Symbolic Impacts

To reiterate, direct symbolic impacts refer to those impacts that center on participants in the case and involve shifts in ideas, perceptions, and social constructs related to the subject matter of the litigation that participants seek to produce.

5.4.1 Indirect Material Impacts

Interviews with leading figures in the field make clear that fostering social and political mobilizations is one of the core impacts of RCC cases and rulings. They also show that court rulings may have ripple effects in government and corporate circles that go beyond the parties to the case.

5.4.2 Indirect Symbolic Impacts

For many key players in the RCC field, changing the hearts and minds of the wider public has been an essential motivation for filing suit. This section will examine impacts that are indirect and symbolic in nature: reframing climate change as an emergency in the eyes of the general public and educating the public about the nature of the climate challenge.