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

Abstract

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 antiregulatory 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. This article is categorized under: Policy and Governance > Multilevel and Transnational Climate Change Governance K E Y W O R D S climate change litigation, climate governance, climate lawsuits, regulation 1 | INTRODUCTIONCourts are playing an increasingly visible role in policy debates about climate change mitigation and adaptation, as well as climate change-related loss and damage. 1 Lawsuits addressing the causes and consequences of climate change-such as the expansion of airports, the reliance on coal-powered energy and the climate-related erosion of the habitats of endangered species-are increasingly apparent in national courts, and scholars even see a potential role for international tribunals to address climate harms (e.g., Bodansky, 2017;Sands, 2016). This article is, to our knowledge, the first to systematically review key literature on climate change litigation over the last 20 years. We build on this to identify new horizons for a forward-

Responsibility for climate change adaptation

“…The parties to the agreement, while acting as representatives of their national interests, are also members of multiple coalitions that influence the negotiations on loss and damage (Boyd, James, Jones, Young, & Otto, 2017). Most profoundly, a distinct difference can be seen between Annex I countries and the other blocks, with the least-developed countries mainly arguing for more establishment of liability and compensation under the framework agreement (Huggel et al, 2015), highlighting the rise of climate-change-related litigation (Setzer & Vanhala, 2019).…”

Climate Litigation in the Global South: Constraints and Innovations

“…The systematic analysis of climate litigation scholarship by Setzer and Vanhala confirms this imbalance, and calls for comprehensive studies focused on Global South litigation. 41 Wales upheld a state council decision granting development consent for the construction of a power station. Greenpeace asserted that air emissions from the power station would exacerbate the greenhouse effect).…”

Coproducing the Endangered Polar Bear: Science, Climate Change, and Legal Mobilization

“…It is now abundantly clear that national courts are one arena in which battles about policy responses to climate change are being waged (Burns and Osofsky ; Marshall and Sterett ; Setzer and Vanhala ). Legal cases such as the 2007 US Supreme Court decision in Massachusetts v EPA , in which a number of US states and several cites brought suit against the Environmental Protection Agency (EPA) to force the agency to regulate greenhouse gases as a pollutant, and the Urgenda (2015) decision in the Netherlands in which the Urgenda Foundation won a legal case to compel the state to take more effective action to address climate change, are just two examples among myriad high‐profile litigation campaigns.…”

“…Legal cases such as the 2007 US Supreme Court decision in Massachusetts v EPA , in which a number of US states and several cites brought suit against the Environmental Protection Agency (EPA) to force the agency to regulate greenhouse gases as a pollutant, and the Urgenda (2015) decision in the Netherlands in which the Urgenda Foundation won a legal case to compel the state to take more effective action to address climate change, are just two examples among myriad high‐profile litigation campaigns. Both cases garnered significant public and media interest, shaped the regulatory landscape, catalyzed nongovernmental organization (NGO) and philanthropic interest in litigation as a potential tactic to address global warming, and sparked scholarly interest and analysis (Fisher ; Setzer and Vanhala ). In addition to these high‐profile cases, Kim Bouwer () argues that the concept of climate change litigation should be expanded to include less visible forms of climate change litigation such as legal cases in lower courts or relying on private law.…”

“…By shifting focus to the agents that mobilize the law, we can better understand why some issues and constituencies are brought before the courts while others are not. We can also contribute to an emerging understanding of the many and varied impacts of climate change litigation (Keele ; Marshall and Sterett ; Setzer and Vanhala ).…”