Leaning on Courts to Compel Climate Action
National governments and powerful corporate leaders are failing our planet. International climate negotiations and their resulting emissions reductions targets are not adequately addressing the climate crisis and the threats it poses. This is because movement in this sphere incrementally gains traction from lobbying and relationship building in political spaces and requires extensive background memos, scientific reports, and testimonies about climate concerns and impacts to inform and guide policy decisions.
Citizens across our planet, however, know what is at stake and want stronger action. According to polling data, 72% of adults across 17 groups are concerned about climate impacts and 65% of American citizens are concerned their leaders are not doing enough to protect against those impacts. These results imply that national governments’ efforts to avert the climate crisis are not in line with citizens’ concerns.
Together, individuals, communities, nongovernmental organizations, subnational governments, and business entities are finding opportunities outside of the national emissions reduction commitments and international treaties to meet the challenges of the climate crisis. They have engineered mechanical solutions, embraced earth-based solutions, advocated for power shifts away from corporations towards communities, and leaned on the courts to play a role in addressing the climate crisis. Courts can accelerate action from governments and corporations not yet meeting their necessary climate change mitigation and adaptation targets by enacting laws, enforcing regulations, and assigning culpability.
As more lives are impacted by climate change and climate tipping points loom, environmental laws and litigation can compel more ambitious climate action and strengthen climate legislation. Legal frameworks provide clear definitions, mandates and enforcement schemes, and obligations for providing relief for climate harm. Climate-related litigation is also important because it sets legal precedents and helps equalize power imbalances by connecting vulnerable communities who are most impacted by climate change to the entities who bear the greatest responsibility for their harm.
The UNEP report on the global status of climate change litigation highlights key trends, which are listed and summarized below, that have emerged from the growing number of litigious battles to save the planet and avert the climate crisis. The report found that cases regarding climate change have almost doubled between 2017 and 2020. (These cases also became increasingly diverse in filing location and plaintiff background.) Although these cases have not seen an overwhelming number of victories to date, the increased attention to climate litigation is significant and represents an important new wave in climate action.
Human Rights – This trend addresses the obligation to act on climate change on behalf of the vulnerable communities most impacted. Specifically, the human rights argument for climate action focuses on how climate change threatens people’s most basic rights to life, water, food, health and shelter.
Keeping carbon sinks in the ground – This trend addresses the impacts of current fossil fuel extraction in the future. Arguments focus on the need for greater consideration of the long term, global climate impacts of fossil fuel extraction projects.
Enforcement – This trend focuses on who is responsible for climate damages (governments and corporations) and ensuring that they are following through on their obligations to mitigate their harmful acts against our planet.
Assigning liability and responsibility – This trend focuses on connecting the entities responsible for emissions and climate harms to the damages they are causing. This is important because it holds fossil fuel producers and major greenhouse gas emitters liable for their contributions to the climate crisis.
Failures to adapt – This trend focuses on compensating defendants for adaptation efforts when governments and major entities ignore the risks of climate change and fail to adequately adapt to its harmful impacts.
Greater transparency – This trend focuses on ensuring that public information about climate change and its impacts is accurate. These cases specifically target greenwashing, which occurs when the public is misled about an entity’s true environmental and climate costs and benefits.
The field of climate law will continue to emerge alongside the legal theories that support it. Climate litigation is essential to hold governments accountable for stronger climate action and for the private sector because it can halt projects that have short or long-term damages on the environment and our climate. Legal climate action represents a hopeful solution. Environmentalists anticipate the scales will be tipped in favor of the environment and climate justice as scientific evidence about climate change and climate attribution, technology for detecting emissions and responsibility, and support for affected communities increases.
