Why Climate Litigation?

Climate litigation is a broad category of legal action that has been used to pursue a variety of different goals. As with all impact litigation, climate litigation is often about political, social, and economic change as much as it is about legal victories. Viewed in this context, "Strategic litigation is about more than obtaining a judgement; it is a larger process in which a case is one tool towards the ultimate goal of lasting change."

Put in this context, climate litigation should be viewed as one part of a comprehensive strategy to address the challenge of climate change. Activism, advocacy, and organizing are also needed to create the political, social, economic, cultural, and legal change needed to address the climate crisis.

Nevertheless, climate litigation is an essential part of a strategy to address climate change. One reason for this is that climate litigation pursues justice. It is widely recognized that those who feel the greatest impacts of climate change are those who are least responsible for the problem. These often include communities facing other injustices such as poverty and the legacy of colonialism. Viewed through this lens, climate litigation strives for climate justice as well as the mitigation greenhouse gases entering the atmosphere. Recent years have seen a "human rights turn" in climate litigation, as more cases now explicitly argue that the actions or inaction of governments and corporations violate the human rights of those who are suffering or will suffer the greatest harms from climate change. The legal system is an appropriate place to arbitrate issues surrounding harms and injustices, and that makes climate litigation an essential part of grappling with the injustice of climate change.

=Past Successes= The track record of climate litigation also indicates that it is an essential tool in the fight to address climate change. Since the early 1990s, when the first cases were brought to court, climate jurisprudence has developed from rejecting climate claims as speculative, to delivering numerous highly consequential victories for climate action. Significantly, there have been times when the courts have been a more willing to address the issue of climate change than political entities. For example, while political leaders have been prone to deny the reality of climate change, the judiciary, drawing upon a tradition of empiricism and relying upon authoritative research such as that compiled by the Intergovernmental Panel on Climate Change (IPCC), has not.

Key victories achieved through climate litigation include:


 * Establishing greenhouse gases as pollutants subject to state regulation (United States in Massachusetts v. EPA)


 * Including climate change risks as mandatory requirement in Environmental Assessments of carbon intensive projects (Australia, Kenya, South Africa, and the United States)


 * Establishing climate adaptation and resilience as a consideration in reviewing development plans (Colombia, India, and Pakistan)


 * Establishing that governments must implement existing domestic climate laws and policies (Leghari v. Federation of Pakistan)


 * Establishing that citizens have a right to the free access of environmental information, including on the climate change impacts of public funds investments (German Federation for Environment and Conservation (B.U.N.D.) v. Minister for Commerce and Labor)


 * Establishing a governmental duty of care for climate change (Urgenda Foundation v. State of the Netherlands)


 * Declaring state incentives for renewable energy as a legitimate policy objective (Syncrude Canada Ltd. v. Attorney General of Canada)


 * Declaring that deforestation violates human and constitutional rights of children and future generations (Colombia and Pakistan)


 * Establishing that governments must protect citizens’ right to a clean environment by requiring restrictions on pollutants known to compromise human health (European Committee on Social Rights in Marangopoulos Foundation for Human Rights (MFHR) v. Greece)


 * Establishing that air pollution caused by burning of fossil fuels can violate the fundamental human rights to life and dignity (Federal Court of Nigeria in Gbemre v. Shell)

=Legal Victories Resulting in Climate Action= While legal victories in climate litigation help build a legal framework for a just transition away from fossil fuels, they also result in real mitigation actions that help reduce greenhouse gas emissions. Some of the cases that have directly resulted in climate action are:


 * The Netherlands closed a coal-fired power plant four years earlier than planned to comply with a court order to reduce emissions by at least 25% compared to 1990 levels by the end of 2020.


 * The State of Massachusetts amended six regulations in response to a court ruling directing the state to establish specific greenhouse gas emission limits (Kain v. Department of Environmental Protection)


 * Proposed coal-fired power plants have been halted due to climate litigation (Kenya, Poland, and South Africa)


 * One of the largest pension funds in Australia agreed to set a net-zero carbon footprint goal by 2050 and to incorporate climate change financial risk into its decision making as a result of a case brought by an Australian pensioner (McVeigh v. Retail Employees Superannuation Trust)

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