Climate Change Litigation

Abstract

Climate change litigation has grown exponentially in the last decade, paralleled by the emergence of a rich legal and social sciences literature assessing these cases. Building on a recent review in WIRES Climate Change, this article evaluates the growth of this literature and the key themes it highlights. In 2019, climate litigation literature experienced substantial growth, with a focus on multiple novel dimensions: new high-profile judgments; emerging legal avenues, types of actors, litigation objectives, and jurisdictions, especially those in the Global South; and additional interdisciplinary analyses. Just as in the underlying case law, climate litigation scholarship shows evidence of distinct but overlapping waves that build together in a manner similar to a harmonic chord. Even so, this literature has not yet engaged deeply with questions about the effectiveness of climate litigation as a governance tool, particularly in the context of the decentralized system formalized with the 2015 Paris Agreement. Expected final online publication date for the Annual Review of Law and Social Science, Volume 16 is October 13, 2020. Please see http://www.annualreviews.org/page/journal/pubdates for revised estimates.

Rethinking the role of law in adapting to climate change

“…The ad hoc nature of some adaptation law reform and the need for more funding to support adaptation may also drive the fourth trend, namely, the use of strategic litigation against governments and corporations to undertake or pay for adaptation (Peel & Osofsky, 2015). While most climate litigation is still focused on driving higher mitigation ambition, the number of adaptation‐oriented cases is growing (Peel & Osofsky, 2020; Setzer & Vanhala, 2019). Indigenous and vulnerable groups are invoking constitutional and other legal rights to a healthy environment to demand stronger action on adaptation (Wenta & McDonald, 2019).…”

“…We are also likely to see more cases in domestic courts and international tribunals involving claimants from vulnerable countries demanding improved disaster risk reduction and alternative livelihood opportunities and invoking human rights and constitutional protections (Atapattu & Campbell‐Duruflé, 2018; Savaresi & Auz, 2019; Peel & Osofsky, 2020, Box 1). Enhanced use of corporate risk disclosure laws to force corporations to engage with their exposure to climate impacts also hold promise as a means by which to drive systemic and potentially transformative adaptation by engaging politically and economically influential actors (Hutley, 2016; Hutley & Hartford Davis, 2019; District Court of the Hague, 2021).…”

The UNGPs on Business and Human Rights and the Greening of Human Rights Litigation: Fishing in Fragmented Waters?

“…The phenomenon has also mainly been assessed from a policy-oriented perspective on the implementation of hard and soft law. Attempts to capture the expansive trend that is increasingly framing any kind of environmental conflict in climate change terms are increasingly documented [10,[176][177][178][179][180][181][182][183][184][185]. This literature, however, does not conceptualise the phenomenon worldwide beyond the common dichotomy of the global north and global south and tend to ignore legal innovation of many courts worldwide that were trendsetters during the first wave of human rights litigation to enforce ESCR and that now increasingly adopt postmodern ecocentric perspectives [186].…”

Climate activism and its effects

“…Litigation is one of the tactics that citizens, local governments, NGOs, and even corporations are using to pressure governments. This tactic aims to work through the judicial system to take action or enforce existing legislation (McCormick et al, 2017; Peel & Lin, 2019; Peel & Osofsky, 2015; Setzer & Vanhala, 2019; see also Pfrommer et al, 2019). In May 2017, UN Environment reported that climate change‐related cases had been filed in 24 countries plus the European Union (UN Environment, 2017).…”