Climate Litigation: Legal Strategies and Outcomes

Abstract 

If climate litigation is not new, a recent wave of cases seems to have particularly strategic ambitions. This use of litigation to achieve strategic goals mirrors the longtime use of litigation by human rights advocates to achieve policy change. But even as climate litigators increasingly incorporate substantive human rights arguments, they have paid limited heed to how the human rights community has used litigation as a tool. This is a missed opportunity. The human rights community has spent decades debating the role that strategic litigation can play in effecting lasting change, reflecting on its role and relationship with other activism, and identifying how to minimize the risks of litigation and maximize its impact. Climate litigators could learn from and build on those lessons about when litigation can be used most effectively for problems whose roots lie deep in society’s social, economic, and political fabric. This paper therefore marks out the links: it locates the emergence of the next generation of climate litigation, involving strategic ambition; it sketches the debates on strategic litigation within the human rights community; and it considers how the lessons from those debates apply to climate litigation.

Introduction

Efforts to push forward action on climate change are increasingly turning to the courts. While not new to the field of climate change action, the number of cases filed has been on the rise, with a significant number—the so-called strategic actions—having long-term strategic ambitions. Curiously, an ever-growing number of such cases appeal to human rights norms and frames. As César Rodríguez-Garavito’s portrait in this volume shows, the impulse to resort to litigation as a way to press forward strategic goals regarding climate change is only one part of a long history of human rights action. Although climate litigators acknowledge the relevance of substantive human rights arguments to climate change, they pay little attention to how the human rights community has used litigation. For decades, human rights communities have debated the role of strategic litigation in long-term change-making processes, reflecting on relationships between strategic litigation and other forms of advocacy and activism, and figuring out ways to minimize the risks of such litigation and increase its impact. Climate litigators have an opportunity to use and build on many of the hard-won lessons of human rights advocates on how to most effectively and strategically use litigation when faced with problems that have deep social, economic, and political roots.

Inherent in the chapter layout is: This arises from the new ascendancy of climate litigation involving cases with strategic ambitions. It lays out debates within the human rights community on strategic litigation. It considers how lessons from those debates may apply to climate litigation. Drawing from the experience of other fields in strategic litigation does not result in a one-size-fits-all solution or answer. The identification of costs and risks with litigation similarly does not support climate activists in ending their litigation. On the contrary, there is great potential in strategic litigation for supporting climate action. A closer look reveals, though, that some climate litigators already have picked up best practices in areas where many human rights litigators lag—be they on social media, during election campaigns, or in fundraisers. This chapter, however, is a call for every decision about whether and how to litigate to be made in consideration of all relevant factors, and for climate litigators to always push within the tight constraints of time and resources to litigate in the most effective, efficient, and strategic way possible

The Evolution of Climate Litigation

It is now estimated that roughly 1,000 climate cases have been pulled together from across the globe, but headline numbers are often misleading. Further, these headline numbers can mask the scope of different climate litigation claims. These claims:

Involve a wide range of parties – cases are brought by individuals, NGOs and governments (typically sub-national), and corporations, and primarily against corporations and governments (a few cases against NGOs and individuals); rely on a wide range of legal principles – including tort, constitutional, administrative, environmental, human rights, corporations, securities, and consumer-protection laws;

Such as alleged failures by governments and corporations to adequately address the prevention of greenhouse gases, to integrate the need for climate change adaptation, to lack of due diligence in managing, reporting, or disclosing climate change risks, ‘anti-regulatory’ challenges to policies designed to help achieve a shift toward clean energy, and proceedings against activists protesting at inaction on climate change.

Not surprisingly, such diversity is normal. The causes and effects of climate change necessarily implicate a wide array of actors and entail social, political, and economic relations. The diversity of climate claims, too, reflects the increasing diversity and polycentricity of climate change governance and action.

These cases, sometimes heralded as ‘new wave’ or ‘next generation’ cases, currently only make up a small proportion of climate litigation.Footnote13 But the impetus behind these cases can only increase. On one hand, our understanding of the threat, and the urgency of action, is growing. People are experiencing day-to-day changes, with disastrous effects more widely felt, whether through increasingly fierce and frequent wildfires, tropical storms, heatwaves, drought, flooding, or climatic changes in the conditions of fisheries and agriculture. There is growing recognition that we face greatly increased risks of triggering tipping points that drive abrupt and irreversible changes in the climate system and critical ecosystems, including “runaway” climate change. Key scientific reports have become part of the mainstream understanding of the implications of further warming. Footnote14 And Research is increasingly able to quantify not only past contributions to climate change but also the contribution of climate change to specific extreme weather events and associated damage. Footnote15

On one hand, public awareness is increasing that climate change might have irreversible effects within one’s lifetime. On the other, public faith in a political response to climate change is fast dwindling. The reports mention numerous gaps in emissions and production. Both historical inaction throughout the 1990s and 2000s, and high-profile political setbacks in key jurisdictions through the latter part of the 2010s-such as the elections in Brazil, Australia, and the United States-have steamrolled widespread concerns about the willingness of governments to take such actions. It has resulted in further disenchantment in the processes of that multilateral body—the UNFCCC Conference of Parties—after protracted failure in agreeing on these needed rules for implementation of the Paris Agreement.

The dissonance between urgency as felt by people and scientists’ call to act on climate change, coupled with the general decay in confidence toward political and corporate decision-making, will increasingly push legal action to the forefront of our climate response.

That said, law is not the only means of achieving social change and litigation is not the only way to use law. Footnote 38 The role of litigation in achieving social change has been contested for decades, with some dismissing courts as a ‘hollow hope’ for rights advocates as early as 1991. Sometimes these critiques characterized the role of courts and litigation in realizing rights or achieving change as ‘anti-democratic, wresting powers from elected representatives and their procedures’, or ‘elitist’ as it disempowers local communities by placing control in the hands of ‘the lawyers’ and diverts scarce resources and attention from more authentic initiatives and solutions. Footnote 40 Others criticize litigation as ineffective for pointing to the poor record of implementation, and the list of ‘landmark’ cases that made little change on the ground, arguing that the narrow and formalistic frame of litigation and judicial orders is inadequate to address deeply complex problems.

Human rights lawyers have heeded the criticisms of strategic litigation as a way of fostering social change in the past few decades. Debates surrounding debates have now generated a great deal of nuance” literature. It recognizes the challenge and boundaries of this tool with ample opportunities. Such literature identifies numerous issues that strategic litigators might want to avoid and draws from several principles that are likely to enhance the effectiveness of strategic litigation (or to minimize its risks).

Strategic litigation can be a significant tool; however, human rights advocates’ experience holds that it is fraught with risk. Risk is often entailed in challenging powerful state or corporate interests and is not alone in risking retribution to individuals or communities, but strategic litigation carries additional risks. Some can be managed with hearings of minds on the likely response of opponents and the courts to the litigation. But to some extent, overemphasizing litigation can also disempower or exclude other initiatives and allow priorities only to those parts of a problem that can find its way into a courtroom, rather than real underlying causes.

Real setbacks, however, come either from litigating the wrong case at the wrong time before the wrong forum or making grandiose claims. Ways that losing could entrench the very problem that you brought the litigation to solve: setting a bad legal precedent or legally validating the very activities that were being challenged in the first place; putting other steps to challenge, more prudently or incrementally, through litigation, at risk; undermining the credibility of evidence or allies; and, even setting a narrative that the defendants were right when the case is only lost on a technical or procedural point. Any among those may thwart efforts to realize change, either through new legal action or some other avenue.

For example, the loss in SAS v France before the European Court of Human Rights helped to give judicial endorsement to the French ban on wearing niqabs—a veil that covers the face—that undermined the focus of a challenge before the UN Human Rights Committee, a more favorable venue that ultimately gave a positive decision, and imposed additional barriers to any domestic challenges to the ban. This has materialized through the failed attempt to prosecute Aung San Suu Kyi in Australia, despite her immunity as the sitting Minister for Foreign Affairs. Led the Australian High Court to prohibit private prosecutions from war crimes, crimes against humanity, and genocide before any actions against lower-profile defendants could establish the practice of how they could work and why they were important. Although Brown v. Board of Education is known as a landmark case, the victory of that case was won by investment into the years of work spent undoing the consequence of a failed earlier case that had enshrined Separate but equal assessments for over fifty years. To mitigate these risks, it is always important to consider carefully and critically the likely responses of both the opponent and the courts. One has to look ahead and see how arguments will be perceived and reacted to by other parties: Will the opponents fight it in the courts try to stop the case from going to court, or try and undermine the credibility of the plaintiffs in public debate? It is important to be realistic about how judges will receive the arguments; rights-oriented lawyers may take for granted views on why international law matters that are not shared by domestic judges. 

 Risks are not confined to cases that lose. Human rights defenders, portrayed as defenders of narrow minorities, have lost public support in many states when confronted with problems hurting the majority populations, such as those posed by austerity and social and economic inequality. The reality is that climate change would affect all. Still, climate litigators may wish to consider whether the very processes they choose, develop and frame their cases by could similarly leave them open to the same kinds of attacks. The mere fact of choosing litigation has costs: litigation to set the parameters of the debate or mobilize behind a common set of asks can lock allies into a fixed position and may reduce room for negotiation or other action. Even decisions that are ultimately favorable can bring about detrimental consequences; for instance, a ruling that goes too far outside of the bounds of the political or social norm can compromise judicial legitimacy. There have been instances where these led to courts losing jurisdiction, as occurred with the Southern African Development Community Tribunal.

However, such risks do not mean that one should never litigate or take action. Instead, they should be duly and critically assessed and weighed against the projected value of a case. That said, there are of course sometimes decent reasons why lawyers should engage in ambitious cases to push forward strategic change, even in cases where the probability of success is somewhat fuzzy (meaning the authors have more than a decade leading strategic human rights and climate litigation, with both wins and losses under our belts.). However, such cases must be taken systematically, thought through and full of the perceived risks, limits, and prospects of litigation if these are to be identified, developed, and pursued in a manner that makes best use of the opportunities of real (as opposed to shallow) success.

Conclusion

With strategy-led approaches, there is an ever-growing quantile and spectrum of climate cases.  As people begin to feel, more directly and more frequently, the impacts of climate change in their own lives, and as the court of public opinion, lawyers, and civil society become more involved amidst the growing number of litigations, we can expect to see mobility in courts and beyond. This is rather something to be welcomed and can work positively. And yet the applicability to the current moment of such lessons from the strategic human rights litigation community is hard to escape. For some of the reasons described above – the importance of articulating a case within the context of a theory of change or of the risk of a premature or badly constructed case undermining others – these will be growingly apt if and likely when the climate litigation community grows, diversifies, and fragments. New cases will bring new challenges, including many that will be familiar to students of strategic human rights litigation—for example, the ethical issues that can arise when litigating for general strategic aims but in the name of concrete, vulnerable communities or individuals whose needs and goals may not in all respects be fully coincident with those of the strategic litigators). 

There is absolutely an existing urgency in climate action. Climate litigators feel this urgency and sometimes stress that there is no time to waste; yet, this call to effective action also means that there is no time to reproduce the errors of the past nor to pass an opportunity to maximize the impact of successes. The rich store of experience and debates of human rights activists on how and when to strategically use it places climate litigators in good stead to draw upon and make the best of the chances for breaking a case for systemic change.

References 

• Climate Change Litigation Databases, Sabin Center for Climate Change Law, http://climatecasechart.com/.

• Joana Setzer and Lisa Vanhala, ‘Climate Change Litigation: A Review of Research on Courts and Litigants in Climate Governance’ 10 WIREs Climate Change, pp. 9–11; See also Hari M. Osofsky, ‘Scales of Law: Rethinking Climate Change Governance,’ PhD Dissertation, University of Oregon (2013).

• See Rb. Hague, 24 June 2015, HA ZA 13-1396, 2015 (Urgenda Foundation/Netherlands). An English translation of the decision of the Supreme Court delivered on 20 December 2019 is available at: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2007.

• Corte Suprema de Justicia [C.S.J.] [Supreme Court], Sala de Casación Civil, abril 5, 2018, M.P.: L.A. Tolosa Villabona, Expediente 11001-22-03-000-2018-00319-01 (Colom.).

• For materials relating Juliana v. United States, including court filings, see ‘Juliana v. United States,’ Our Children’s Trust, <https://www.ourchildrenstrust.org/juliana-v-us>.

• Leghari v. Pakistan (W.P. No. 25501/2015), Lahore High Court Green Bench, Order of 4 September 2015, available at: https://affaire-climat.be/fr/the-case.

•  Philippines Commission on Human Rights, National Inquiry on Climate Change, Report (2022) https://chr.gov.ph/wp-content/uploads/2022/05/CHRP-NICC-Report-2022.pdf.

•  lawsuits filed by US cities and counties against oil and gas companies. See Dana Drugmand, ‘Climate Liability Suits by San Francisco and Oakland Receive a Flood of Support’, Climate Liability News, 27 March 2019. 

• Additionally, there is the lawsuit brought by Peruvian Farmer Saúl Luciano Lliuya against the German energy utility RWE. See ‘The “Huarez” Case at a Glance’, Germanwatch, https://germanwatch.org/en/huaraz. The inquiry currently being undertaken by the Philippines’ Commission on Human Rights into the responsibility