Standing, Justiciability, and Burden of Proof in Climate Litigation: Challenges and Proposals (original) (raw)

Climate Change Litigation: Trends, Policy Implications and the Way Forward

Transnational Environmental Law, 2020

Climate change has evolved from being a controversial issue to a widely recognized global threat over time. The inclusion of climate action as one of the 17 United Nations (UN) Sustainable Development Goals, 1 the conclusion of the 2015 Paris Agreement, 2 and the publication in 2018 of the Intergovernmental Panel on Climate Change (IPCC) Special Report on Global Warming of 1.5°C 3 have forged an agreement among the international community on the causes and risks of climate change. At the national level, a surge of laws codifying national and international responses to climate change has given rise to a growing number of lawsuits around the world on climate change-related matters. 4 The topic of climate litigation has attracted the attention of scholars from across social sciences fields, including most prominently the legal discipline and political science. 5 Legal scholarship on climate litigation covers a broad scope

Climate Change Litigation: Comparative and International Perspectives

British Institute of International and Comparative Law, 2020

The British Institute of International and Comparative Law held the event 'Climate Change Litigation: Comparative and International Perspectives' on 16 January 2020, as part of the Arthur Watts Seminar Series in Public International Law funded by Volterra Fietta. The event discussed legal developments in the field of climate change from a comparative and international perspective. It was comprised of two panels, the first on 'Climate Change Litigation before Domestic Courts', and the second on 'Climate Change Litigation at the International Level'. The panelists included academics and legal practitioners, many of whom were, or are currently, involved in strategic climate change lawsuits, in a range of jurisdictions. The event was opened by Lord Carnwath of the United Kingdom Supreme Court. This report provides an overview of the discussions and synthesises some of the conclusions. It is divided into two parts according to the panel topics, and its content is presented thematically, with each sub-heading incorporating relevant comments that were made throughout the event.

Increasing Climate Litigation: A Global Inventory

French Yearbook of Public Law, 2023

Climate change, often described as a “super-wicked” problem, has led to an increasing number of legal actions against governments and cor- porations worldwide. These cases, stemming from the failure of na- tional and international policymakers to address climate change ad- equately, are expanding in scale and ambition. This article explores climate litigation as a response to the urgent climate change crisis. It provides a global overview of climate-related litigation by examining prominent domestic cases, underscoring the collective nature of cli- mate governance and the crucial role of the judicial system in address- ing this global challenge.

Climate change litigation: A review of research on courts and litigants in climate governance

WIREs Climate Change, 2019

Studies of climate change litigation have proliferated over the past two decades, as lawsuits across the world increasingly bring policy debates about climate change mitigation and adaptation, as well as climate change-related loss and damage to the attention of courts. We systematically identify 130 articles on climate change litigation published in English in the law and social sciences between 2000 and 2018 to identify research trajectories. In addition to a budding interdisciplinarity in scholarly interest in climate change litigation we also document a growing understanding of the full spectrum of actors involved and implicated in climate lawsuits and the range of motivations and/or strategic imperatives underpinning their engagement with the law. Situating this within the broader academic literature on the topic we then highlight a number of cutting edge trends and opportunities for future research. Four emerging themes are explored in detail: the relationship between litigation and governance; how time and scale feature in climate litigation; the role of science; and what has been coined the "human rights turn" in climate change litigation. We highlight the limits of existing work and the need for future research-not limited to legal scholarship-to evaluate the impact of both regulatory and anti-regulatory climate-related lawsuits, and to explore a wider set of jurisdictions, actors and themes. Addressing these issues and questions will help to develop a deeper understanding of the conditions under which litigation will strengthen or undermine climate governance.

The Implications of Climate Change Litigation for International Environmental Law-Making

SSRN Electronic Journal, 2007

Everyone is talking about climate change. Climate change has been on the cover of almost every U.S. magazine in the past year, including Vanity Fair, Time, Newsweek, the Economist, and even Sports Illustrated, on such television shows as Oprah and The Tonight Show, and in the movie theatres with Al Gore's An Inconvenient Truth and Who Killed the Electric Car?. To be sure, this media attention is driven first by the increasingly clear scientific connection between greenhouse gas concentrations, climate change, and real impacts affecting real people. But the growing public awareness of climate change is also being driven by the actions of lawyers and other climate advocates who are increasingly raising climate change in the world's courts, commissions and congresses. Climate change even made an appearance before the US Supreme Court. 2 Win or lose (and some will surely win as they did in the US Supreme Court), these litigation strategies are significantly changing and enhancing the public dialogue around climate change. This chapter discusses these awareness-building impacts of climate litigation as well as related impacts such strategies may have on the development of climate law and policy-even if many of the individual cases lose. 3 The chapter does not discuss the significant implications if a tort action in the United States or the Inuit human rights claims, for example, were ultimately to prevail. Such precedents, which would obviously be far reaching, are discussed in the various chapters of this book addressing each strategy. The primary focus here is on the implications of the climate litigation strategies simply by virtue of their having been filed. In fact, the debate over whether specific theories will prevail or what remedies can be fashioned in a specific case misses

A review of recent climate change-related cases before domestic courts

Environmental Liability - Law, Policy and Practice, 2021

This review offers a survey of legal responses to climate change. The majority of lawsuits involve private plaintiffs suing defendant governments and reveal a number of positive trends, including holding governments accountable to international instruments, building synergies with human rights legislation, linking climate change to the economic and developmental sectors and applying the doctrine of public trust.

Judicial Remedies for Climate Change in Domestic Courts How Civil Lawsuits Can Sustain Engagement between the Present and Future Generations. Insights from a Civil Law Perspective

The essay explores the systematisation of climate change litigation within civil law jurisdictions, with a particular focus on the role of civil courts in securing new rights for future generations. It argues that climate litigation is not an isolated issue, demonstrating how civil courts continually influence legal developments. Through an analysis of the global prevalence of climate litigation, the essay emphasises the evolving contribution of courts to legal frameworks concerning environmental protection and the welfare of future generations. In its second part, the paper further examines the concept of vertical climate litigation and its potential long-term effects. It assesses whether vertical climate litigation operates as a temporary measure, especially within Europe, possibly concluding by 2050 in line with the EU's pursuit of climate neutrality, or if it can function as a lasting supranational or EU enforcement tool to oversee the implementation of States' climate policies.

Global climate constitutionalism and justice in the courts

Research Handbook on Global Climate Constitutionalism, 2019

This chapter explores developments at the boundary between environmental constitutionalism and climate justice. We see two trends. First, a growing group of countries now expressly address climate change in their constitutions. Second, courts from diverse parts of the world are recognizing that governmental inaction in the face of climate change can abridge a right to a healthy climate as implied by an express constitutional right to life, dignity or due process, or the right to a healthy environment. These trends are likely reflective of an emerging worldwide phase in constitutional litigation. Part II conceptualizes and contextualizes what has come to called ‘climate justice,’ that is, the social and economic consequences of the disproportionate effect of climate change. Part III details the extent to which countries have adopted express constitutional means to address governmental inaction about climate change. Part IV then reports on how courts have engaged these and associated provisions. We conclude that climate constitutionalism has significant potential for shaping how the rule of law can contribute to climate justice, especially at the domestic level.