Obstacles to Climate Litigation

Different climate litigation strategies have been pursued to test out a legal system’s ability to respond to climate change-related actions. In the process of testing out numerous strategies to use the legal system to compel action to address climate change, obstacles to successful climate litigation have become apparent. Some of the common obstacles to successful climate litigation are:
 * Some cases are dismissed on the basis of justiciability, i.e. either a lack of judicial discretion over the particular issue raised or due to a lack of standing of the plaintiff.
 * the argument that judges lack the scientific knowledge to be able make decisions on climate change
 * the (perceived un-) reliability of scientific evidence and climate models
 * the argument that harm might will (in some cases) occur in the future
 * and the question of appropriate remedies.
 * the ‘drop in the ocean’ problem: no one entity is responsible for climate change
 * ’death by a thousand cuts’: the law has ‘difficulty in dealing with cumulative environmental effects’

This wiki-page aims to outline some of the challenges faced by litigants, so that you know what to consider when kickstarting your own law suit.

=Standing= When trying to build a lawsuit on climate change, you must be clear about who will be the subject(s) of the trial, specifically who will be asked to defend themselves. To answer these questions, it is necessary to:
 * 1) Investigate the legislation and jurisprudence issued by the courts, to clearly know how the country regulates the subject or the subjects that it is intended to defend. For example, there are a series of lawsuits that have argued that the promotion of the trial is to guarantee the human rights of future generations. However, there are countries where the courts have established that future generations are not yet considered as human rights defenders, because they are not yet acquired rights, and it becomes a reason for elimination.
 * 2) Know who is going to be sued. This it is necessary to know what action or inaction is being sued, and who can be charged. For example, determine if it is the state that is doing that action or omission, or if it is an individual. At this time, it is convenient to recognize the international laws to which the State is a party and the national laws that help the plaintiff argue that this action or omission is violating some right. Remember that the law is not absolute, and it is the needs of society that motivate and encourage the creation of new laws to address the problems that are currently being experienced.
 * 3) Determine how you'll use science to strengthen demand. It is important to know the scientific studies that will help us to argue in court why what is required requires actions according to the problems. We must not forget that the judges are specialists and knowledgeable about the law, but not about the sciences that can explain the causes and consequences of global warming.  It is important to start incorporating these elements so that each judge has elements that help them understand the complexity of the matter. Likewise, the incorporation of amigus curies are important elements that will help judges at the moment to issue a sentence.
 * 4) When there is no certainty about the interpretation of any international norm, it is convenient to resort to the advisory opinion of the competent international commissions, to find out if the country has already solved the interpretation of any article for the application in the same sense.

=Causality=

=Overcoming obstacles= When you suspect that your court might not have the expertise to consider all the available information from around the world, Amicus curiae briefs may be used to provide additional information. See here for a long list of such briefs submitted in support of Juliana vs. US government and here for an Amicus curiae brief against a compensation law suit in the US. At the same time it gives a good idea of the obstacles that need to be overcome.

Please help to complete this section by adding more obstacles from lost cases.