The preceding chapters have offered an extensive exploration of the rapidly evolving landscape of climate change litigation. The analysis across themes and issues shows how litigation has become a pivotal strategy for climate action, addressing the sluggish pace of policy development and minimal ambition of climate commitments within the legislative and executive branches of government. The Handbook as a whole also shows the snowball effect of climate litigation, with judicial dialogue spurring innovation in litigation strategies and judicial reasoning. Often drawing on landmark decisions in cases such as State of the Netherlands v Urgenda Foundation,Footnote 1 Milieudefensie v Shell,Footnote 2 Neubauer et al v Germany,Footnote 3 Leghari v Pakistan,Footnote 4 and Billy et al v Australia,Footnote 5 an ever-growing number of rulings from judicial and quasi-judicial bodies around the world now underscores the potency of litigation in driving more ambitious and equitable climate policy and action. This trend has reached new heights with the groundbreaking decisions discussed in Chapter 19: the European Court of Human Rights (ECtHR) judgement in Verein KlimaSeniorinnen Schweiz and Others v SwitzerlandFootnote 6 and the Advisory Opinion of the International Tribunal for the Law of the Sea (ITLOS) on climate change and marine protection.Footnote 7
Through meticulous analysis of the emerging case law, each of the chapters has illustrated how climate lawsuits have cumulatively broken new legal ground and contributed to the evolution of legal systems worldwide, underscoring the resilience and adaptability of these systems in the face of climate change. Courts around the world have shown a particularly high degree of ingenuity through innovative applications of human rights and constitutional provisions, tort law, and principles such as public trust, as well as in grappling with questions of procedure and evidence.Footnote 8 They have generally done so with an eye to how other courts have approached similar questions. The Urgenda decision, for example, has served as guidance for courts not just in other European jurisdictionsFootnote 9 but also further afieldFootnote 10 and at the international level.Footnote 11 The ECtHR decision in KlimaSeniorinnen further underscores the potential of strategic climate litigation to recalibrate institutional and policy responses to the climate crisis, with a distinct role for international bodies. Similarly, the ITLOS Advisory Opinion clarifies states’ obligations under the law of the sea in relation to climate change and, in doing so, advances many of the themes explored throughout this Handbook.
As Eckes, Nedevska, and Setzer show in their chapter, climate litigation has also pushed conceptual boundaries on justiciability. Courts around the world are increasingly assuming a more proactive role in safeguarding rights in the face of insufficient government action on climate change. These developments reveal the versatility of litigation as a strategy to break political inertia and ensure climate justice. The ECtHR and ITLOS decisions further reinforce this trend, with both judicial bodies demonstrating a willingness to engage with complex climate issues and enhance accountability for climate change and its consequences.
However, the transformative potential of climate litigation is far from being fully realised. With climate impacts exacerbating while legal landscapes evolve, new frontiers for strategic litigation are emerging. Realising the full potential of litigation as a catalyst for climate action will require persistent innovation in legal strategies coupled with collaboration across jurisdictions, social movements, scientific disciplines, and legal practitioners worldwide. This Handbook offers insights and perspectives to inform these continued efforts to further develop climate litigation as a force for climate justice.
20.1 Emerging Frontiers in Climate Litigation
20.1.1 Loss and Damage Litigation
One rapidly developing frontier is litigation focused on addressing climate change-induced loss and damage. Loss and damage encompasses the adverse impacts of climate change that occur despite mitigation and adaptation efforts.Footnote 12 These impacts span economic and non-economic losses, from loss of income and property damage to loss of cultural heritage, indigenous knowledge, biodiversity, and ecosystem services.Footnote 13 A growing body of scholarship and practice highlights the human rights dimensions of these losses and damages, underscoring the need for global responses capable of preventing and minimising interferences with rights and redressing violations. Currently, the financial burden of addressing loss and damage lies almost exclusively with those affected.Footnote 14 This inequity compounds existing vulnerabilities, perpetuating a cycle of poverty and susceptibility to climate impacts.Footnote 15
The imperative of addressing loss and damage has gained increasing recognition, reflected most prominently in the inclusion of a standalone provision on loss and damage in the Paris Agreement, namely Article 8 (untitled).Footnote 16 At the same time, however, progress towards a coordinated global response to address loss and damage remains minimal. While the 27th Conference of the Parties to the UNFCCC (COP27) held in 2022 culminated in an in-principle agreement to establish a new Loss and Damage Finance Facility,Footnote 17 critical questions about the precise arrangements of this new fund remain unanswered. Moreover, the exclusion of liability and compensation from the scope of the Paris Agreement’s Article 8 arguably render this provision, as Broberg puts it, ‘without bite’, thus necessitating resort to ‘domestic as well as international legal regimes’ to rectify this shortfall.Footnote 18
Against this backdrop, litigation is emerging as a pathway to enhance action and support for climate-vulnerable countries and communities grappling with compensable damages and/or irreversible climate impacts. As most cases focused on loss and damage are still pending, the potential of this type of litigation has not been fully revealed in this Handbook. However, it is clear from the broader body of climate caselaw that litigation – both domestically and internationally – does hold promise as a strategy for confronting loss and damage. For example, Mead and Doelle’s chapter suggests that potential cases could seek reparations for climate-related loss and damage based on primary rules such as the polluter pays principle, with Savaresi’s chapter setting out how such claims would be underpinned by secondary rules of state responsibility. Invoking human rights frameworks could also bolster claims for redress and compensation, as demonstrated by Wewerinke-Singh and Maxwell in their chapter on human rights.
For loss and damage litigation to deliver climate justice, the underpinning legal principles and remedies must integrate considerations of ethics, fairness, and equity.Footnote 19 Liability and compensation frameworks emerging from litigation should reflect differential levels of responsibility for climate change so that the burden of addressing it is not inadvertently shifted to those who contributed only minimally to its causes. Overall, intelligently designed loss and damage litigation could significantly advance climate justice and provide legal pathways for those experiencing losses and damages to seek redress.
20.1.2 Litigation against Private Polluters
Strategic litigation against major corporate greenhouse gas emitters is another promising frontier, with the Milieudefensie v Shell ruling of the Hague District Court as a pioneering example of emerging best practice. Cases in this emerging frontier seek to hold private entities directly accountable for their significant contributions to climate change, unlike cases against governments which indirectly target corporate polluters through regulation. As scholars have noted, early lawsuits against private entities failed in part due to difficulties in attributing specific climate impacts to individual corporate actions.Footnote 20 However, as discussed by Phillips et al and Minnerop in their respective chapters, attribution science is progressing rapidly, enhancing prospects for successful polluter litigation. The enactment of laws establishing a due diligence standard for private actors in several parts of the world, both at the domestic and regional levels, further enhances these prospects.Footnote 21
Another emerging strategy is pursuing polluters for deceptive practices obscuring the climate impacts of their products. This approach has already yielded some success in recent cases against fossil fuel companies.Footnote 22 The deceptive practices of fossil fuel companies, including their intentional misleading of investors, regulators, and the public about climate science, were authoritatively established as fact by the Commission on Human Rights of the Philippines in its national inquiry on the responsibility of the world’s largest investor-owned fossil fuel companies for climate change-induced human rights violations in the Philippines.Footnote 23 Creative applications of litigation frameworks such as securities law, consumer protection law, and human rights law could expand avenues for private polluter accountability for climate change and its consequences.Footnote 24 Ambitious, coordinated lawsuits in multiple jurisdictions may overwhelm polluters’ legal defences and resources, thus potentially accelerating the transition to sustainable energy sources. Given the unparalleled contributions of major corporate polluters to the global climate crisis, further developing private polluter litigation is a climate justice imperative.Footnote 25 Moreover, such litigation seems indispensable for driving systemic shifts in corporate behaviour to curtail emissions, disincentivising climate misinformation campaigns, and encouraging economic practices that help rather than hinder the transition to just and sustainable societies.
20.1.3 More Diverse Litigation against Governments
As highlighted in the chapter by Connors et al, governments’ mitigation targets are ‘woefully insufficient’ to achieve the long-term temperature goal agreed by all States in the Paris Agreement.Footnote 26 The Global Stocktake in 2023 highlighted the gap between governments’ mitigation efforts and the scale of action needed to limit global warming to 1.5°C above pre-industrial levels, along with the ‘rapidly narrowing window to raise ambition and implement existing commitments’ in order to achieve this.Footnote 27 Litigation against governments targeting the ‘ambition’ of their mitigation targets is therefore likely to remain a focus in the coming years.
In addition, litigation is likely to target other problematic aspects of governments’ inadequate climate policies. For instance, while various countries have adopted more ambitious (albeit still insufficient) emission reduction targets in recent years, most are not on track to meet these targets.Footnote 28 If left unaddressed, these shortfalls in implementation are a likely target for future litigation. Concerns around the (lack of) transparency and feasibility of governments’ climate policies, including in connection with widely adopted but often poorly operationalised net-zero targets, are also likely to trigger further claims.Footnote 29
Again, the contributions from the ECtHR and ITLOS are likely to reinforce these trends. The ECtHR’s establishment of specific positive obligations for states under the European Convention on Human Rights provides a detailed framework for challenging government inaction on climate change. Similarly, the ITLOS Advisory Opinion’s clarification of states’ obligations under the UN Convention on the Law of the Sea (UNCLOS) opens up new possibilities for litigation focused on marine protection and climate change. These decisions will undoubtedly serve as blueprints for new cases in other jurisdictions and under different legal regimes.
20.1.4 Interlinkages between Climate Change, Biodiversity, and Rights of Nature
The intricate relationship between climate change and biodiversity loss is crystallising in science, policy, and law.Footnote 30 Climate change is a direct driver of biodiversity decline, while ecosystem degradation exacerbates climate change impacts.Footnote 31 Consequently, legal approaches integrating climate change and biodiversity protection are emerging, including in litigation.
Some countries have enacted legal frameworks recognising the interconnectedness between climate and biodiversity.Footnote 32 Litigation defending biodiversity through a climate lens represents largely uncharted legal territory holding immense potential. Lawsuits could invoke biodiversity protection laws to challenge fossil fuel expansion projects that would exacerbate climate change and endanger ecosystems. Opportunities also exist for creative lawsuits using climate laws to prevent activities threatening biodiversity. Successfully establishing legal responsibility for biodiversity impacts resulting from climate change would be groundbreaking. Exploring interconnected climate and biodiversity impacts in lawsuits could ultimately foster more holistic legal approaches addressing these twinned global crises.
Further developments around rights of nature could drive and accelerate evolution in this area. As Borràs-Pentinat’s chapter demonstrated, lawsuits invoking the rights of nature and legal decisions recognising such rights emphasise the potential of fostering sustainable and meaningful relationships between humans and the natural world. These lawsuits and decisions align with the shifting ethical paradigm underlying rights of nature – from conceiving nature as property to recognising its inherent value. Landmark judgments such as Future Generations v Ministry of the Environment and OthersFootnote 33 show the transformational potential of climate litigation upholding nature’s rights, potentially redefining legal systems’ relationship with the natural world. Although nascent, strategic litigation centred on interconnected human, climate, and biodiversity considerations, as well as the rights of nature, represents a highly promising approach for multi-species climate justice.
The ITLOS Advisory Opinion reinforces the importance of these interlinkages, particularly in the context of marine ecosystems. By drawing legal conclusions from the demonstrated impacts of climate change on marine biodiversity, it provides a legal basis for integrating climate and biodiversity considerations in future litigation strategies.
20.1.5 Inter-State Climate Litigation
As Mead and Doelle’s chapter unveiled, international law has significant potential when applied more fully in climate adjudication. Savaresi’s chapter underscores this potential, with the analysis of state responsibility signalling that inter-state climate litigation could profoundly shape international climate politics and law. In essence, the cross-border nature of climate change means states are increasingly facing transboundary harms. The acts and omissions of states causing these harms potentially breach the no-harm rule, the principle of prevention, and a wide range of other obligations of states under international law.Footnote 34 The chapter recognises that inter-state climate lawsuits face barriers, including procedural obstacles and uncertainties around the exact scope and content of applicable international norms. However, the ITLOS’ clarification of states’ obligations under UNCLOS has significantly reduced this uncertainty, with the forthcoming advisory opinions on climate change obligations and legal consequences from the International Court of Justice and the Inter-American Court of Human Rights poised to further strengthen the foundations for inter-state climate claims.
Once procedural obstacles are overcome, inter-state climate lawsuits could lead to further crystallisation of states’ obligations related to climate change under international law. Resulting judgments may also provide grounds for affected states to claim reparations for climate damages. This type of inter-state climate litigation would be unprecedented, with potentially major implications for international cooperation and climate governance. Ultimately, realisation of this frontier hinges on visionary legal interpretation aligned with foundational legal norms and principles, most notably including the jus cogens right of self-determination and other fundamental rights. Pioneering cases centred on the protection of the rights of peoples at the climate frontlines may be essential to unlock the radical potential of inter-state climate litigation.
20.2 Concluding Thoughts
Climate change is an existential threat demanding urgent and unprecedented action across all levels of society. As this Handbook illustrates, climate litigation has emerged as a vital strategy for catalysing such action. At the same time, the emerging best practice discussed in this Handbook highlights the potential of strategic climate litigation to recalibrate institutional and policy responses to the climate crisis. Often, this is achieved by demanding the fulfilment of existing state duties and the enhancement of corporate accountability. Realising this potential more fully will require sustained creativity, ambition, and collaboration among communities of practice worldwide.
Taking a bird eye’s view, it seems no exaggeration to say that climate change necessitates reimagining legal systems and firmly upholding – or even expanding – notions of justiciability. As several of the contributions to this Handbook have also shown, it is essential that principles of equity and human rights inform these processes of legal evolution and innovation. Commitment to these fundamental legal norms, alongside tireless persistence from civil society and the legal community, will determine the success of climate litigation in delivering climate justice. Borràs-Pentinat’s chapter further reminds us of the power of legal imagination, with the evolving jurisprudence on the rights of nature representing perhaps the most apt illustration of transformational legal reasoning capable of confronting narratives and norms that have helped facilitate the climate crisis.
This Handbook represents, we hope, a milestone in the evolving scholarly discourse and legal practice in the field of climate litigation. But it is also an invitation to further scholarly analysis. As the field continues innovating, additional perspectives highlighting promising developments, nascent strategies, and emerging issues will be needed. We hope this Handbook provides inspiration for scholars, practitioners, and concerned citizens around the world to boldly engage in this agenda-setting area of legal scholarship and practice. With the stakes higher than ever, the global quest for climate justice – through litigation and other means – must press on.
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