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
 * 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.

Justiciability
The concept of Justiciability creates a ‘threshold barrier that may prevent a plaintiff's claim from being considered by the court.’ Standing becomes an issue here (see below) as well as whether the court that is looking at the case has the jurisdiction of the particular legal question or problem addressed. Courts are reluctant to consider matters that fall under the responsibility of other branches of government. Courts might get frustrated by cases brought to them that aim to attract attention, rather than raising plausible legal claims. The threshold put in place will prevent courts from considering cases, regardless of how strong a claimants case might be, if the case itself ‘cannot be heard’.

Standing
When trying to build a lawsuit on climate change, you must be clear about who will be the "subject(s)" of the trial. Standing is defined differently in different jurisdictions, but genuinely describes the rules that are applied to decide whether a person is ‘entitled to bring a claim before the court.’ Usually someone wishing to raise a legal action must ‘have a genuine and current stake in the outcome’. The person must then be able to show that the court has the capability and authority to resolve the dispute. Standing remains a primary hurdle in climate litigation; the claims must be very precise with regards to how certain climatic changes will affect the individual’s life. In Carvalho v. The European Parliament and the Council the court dismissed the case stating that ‘plaintiffs were not directly and individually affected by the EU’s climate emission targets.’p41


 * 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 right holders.
 * 2) Know who is going to be sued. It is necessary to know what action or inaction is being used, and who can be charged. For example, determine if it is the state or an individual that is doing that action or omission. Identify 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 your arguments. It is important to back up arguments in court with scientific evidence showing why action on climate change is necessary and how continued emissions will cause tangible harms to specific individuals (see Attribution Science). 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 amicus curiae are important elements that will help judges at the moment to issue a sentence.
 * 4) When there is uncertainty 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.

Redressability
Redressability is the concept that a problem can be solved by a court, and if it cannot, then it is not for the court to take up. In other words, the plaintiff in a case must seek relief that, if granted, would substantive change or remedy the situation.

The challenge with redressability in climate change litigation is that climate change is such a large problem, that any one action by a court is unlikely to make a noticeable difference in the trajectory of climate change. It is for this reason that defendants often argue that any remedy granted in a particular case is unlikely to remedy the underlying problem of climate change.

Separation of Power
This theory generally aims to have the power of a state distributed into the legislative branch, the executive branch and the judicial branch. Courts generally have been reluctant to engage in judicial law-making (i.e. develop or progressively interpret existing laws far-reaching-ingly through activist judgements). Therefore, depending on the jurisdiction, the litigation strategy should take the respective court’s willingness to judicially review government actions into consideration.

‘The Supreme Court of the Netherlands took a different view in Urgenda, concluding that it had the authority to determine that the government’s failure to legislate could violate a duty, and that it could order the government to achieve a certain goal so long as the government retained discretion over how it would reach that goal.’

Several high-profile cases in the United States have been dismissed on the grounds that the issue has been deemed a political question. In, Massachusetts v. EPA, the U.S. Supreme Court ruled that the U.S. Environmental Protection Agency had authority to regulate greenhouse gas emissions under the Clean Air Act. In later cases such as American Electric Power Co. v. Connecticut and Kivalina vs. Exxon, the courts applied this precedent to rule that common law concerning the regulation of greenhouse gases had been “displaced” by the Clean Air Act, and was now a matter for the legislative and executive branches to address.

Interesting cases on this are: Family Farmers and Greenpeace Germany v. Germany, Friends of the Irish Environment CLG v. Gov’t of Ireland, American Electric Power Co. v. Connecticut, and Future Generations v. Ministry of the Environment. In each case the courts take a different angle and in most cases find that in fact the courts do have the competency to, for example judicially review government policies.

Causation
Depending of course on what the litigation strategy of a particular case is, establishing a causal link between the harm caused and actions of the responding party (e.g. a company or a public institution) can constitute a challenge. It might be challenging to establish a causal link since greenhouse gas emissions have mixed and accumulated in the atmosphere.

This challenge can be overcome with increasingly robust attribution science, linking certain extreme weather events to particular emitters. The development of attribution science has also contributed to overcoming the challenge posed by the causation requirement in some cases. See the German case of Lliuya v. RWE where the argument that RWE emission’s have contributed to ‘0.47% of the worldwide anthropogenic greenhouse gases, leading to increased global warming and the melting of the glaciers in the Peruvian Andes’ has convinced the court sufficiently, so that the evidence submission period has now started. For more information on this, see our page on Attribution Science

Read more on causation:
 * Climate Change and Causation. Joining Law and Climate Science on the basis of Formal Logic (Minnerop, Otto 2020) about a new matric based on formal logic that explains the relation between emissions and individual climate related events.

Tort Law
The harms caused by climate change are already vast and will only grow vaster still. Tort law has historically struggled to deal with catastrophes on a vast scale, as judges often shy away from strictly applying tort law in cases where the scale of the harm and the relief requested are vast. Climate change also seems to defy the mechanistic conception of causation that tort law holds. The problem is so vast and complex that it is difficult to conceptualize without relying on a particular frame. One frame that has been tried by those bringing climate liability cases is that the majority of greenhouse gas emissions were emitted by less than a 100 companies, and that a relatively small number of entities are responsible for a significant percentage of the harms caused by climate change. Those trying to avoid responsibility use another frame, one where climate change is a global problem caused by the sum of humanity's actions and a change in behavior by any one entity will not noticeably affect the course of a warming planet, a "collective action problem so pervasive and so complicated as to render at once both all of us and none of us responsible." This argument has resulted in numerous dismissals of climate litigation cases. Nevertheless, several courts have rejected this argument, most prominently in Urgenda Foundation v. State of the Netherlands, the District Court's decision in Juliana v. United States and Lliuya v. RWE.

Costs
Cost can be a significant obstacle to access courts. This can be particularly true for climate litigation which often involves resource poor plaintiffs bringing cases against defendants with very deep pockets, such as multinational corporations or national governments. Further, climate litigation may involve particular expenses due to expert evidence, complex legal issues, multiple party involvement, specialist legal advice, and unfavorable procedural rules.

Fortunately, many jurisdictions have various tools available to address concerns with cost. See Appendix A of the International Bar Association's Model Statute for Proceedings Challenging Government Failure to Act on Climate Change for some potential remedies.

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.

Resources
Climate Change, Causation and Delayed Harm (Biber,2009) on how causation has been used by those trying to avoid liability and those wanting to dismiss climate cases.

Global Climate Litigation Report 2020 Status Review by the UN Environment Programme and the Sabin Center for Climate Change Law provides a comprehensive overview of the legal issues that came up in numerous cases and how the various courts dealt with them in respective cases.