legal essay on climate change

Climate Change and Constitutional Overreach

Drake Law Review (Forthcoming)

Case Legal Studies Research Paper No. 11

33 Pages Posted: 10 Sep 2024

Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Date Written: July 26, 2024

The failure of the political process to produce meaningful policies to mitigate the threat of climate change has encouraged aggressive and innovative litigation strategies. An increasing number of climate lawsuits seek to control greenhouse gas emissions, impose liability on fossil fuel producers, or otherwise force greater action on climate change. In many of these cases, litigants have made aggressive constitutional claims that stretch the bounds of existing constitutional doctrine. This essay, prepared for the 2024 Drake University Constitutional Law Center Symposium, "Climate Change, the Environment, and Constitutions," critically assesses some of the constitutional arguments made in climate cases, including Massachusetts v. EPA and Juliana v. U.S ., as well as some of the constitutional claims made by states opposing efforts to limit greenhouse gas emissions.

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The Rise of Climate Litigation

Shagun Agarwal is a Climate Solutions Associate at ISS ESG. This post is based on his ISS memorandum. Related research from the Program on Corporate Governance includes  The Illusory Promise of Stakeholder Governance by Lucian A. Bebchuk and Roberto Tallarita (discussed on the Forum here ); Companies Should Maximize Shareholder Welfare Not Market Value by Oliver Hart and Luigi Zingales (discussed on the Forum here ); and  Reconciling Fiduciary Duty and Social Conscience: The Law and Economics of ESG Investing by a Trustee by Max M. Schanzenbach and Robert H. Sitkoff (discussed on the Forum here ).

Climate litigation is an increasingly common and accessible area of environmental law, and is being used to hold countries and public corporations to account for their climate mitigation efforts and historical contributions to the problem of climate change.

A Global Surge in Litigation

There is a clear upward trend in the use of climate litigation. Until 2017, the total number of climate litigation cases was 884 across a total of 24 countries, with 654 of these cases being in the United States. By 2020, this number had nearly doubled to 1,550 cases across 38 countries.

Figure 1. Climate Litigation, 1986-2021

Source: Global Trends in Climate Litigation , London School of Economics, 2021

Consequently, litigation risk is emerging as an expanding subset of both physical and transition risks. With the varying validity of the multitude of Net Zero claims being made, this risk becomes an even more important aspect to be considered.

The cases have so far broadly fallen into one or a combination of six major categories :

• Climate rights
• Domestic enforcement
• Keeping fossil fuels in the ground
• Corporate liability and responsibility
• Failure to adapt and the impacts of adaptation
• Climate disclosures and greenwashing

Figure 2. Climate Litigation Categories

Source: Global Climate Litigation Report, 2020

While each category has seen a wide spectrum of scrutiny, there has been a growing focus on climate disclosures and greenwashing. Because of growing awareness, accessibility, and disclosure requirements, countries and increasingly corporations find themselves being held to account for their climate mitigation pledges and consequent environmental impact, by investors and stakeholders alike.

Holding Corporations Accountable for Impacts on Climate Change

The current rate of increase in cases against private and financial sector actors indicates more diversity and complexity in the arguments that are being used, particularly those based on notions of fiduciary duty and greenwashing.

Examples of the growing standards of accountability that are now being legally levied include the following cases:

• The York County v. Rambo case (pending), where bond investors accused the Pacific Gas and Electric Company of failing to disclose the risk of its non-compliance with electrical line maintenance standards and consequent contribution to increasing wildfires in the region.
• Friends of the Earth et al. v. Prefect of Bouches-du-Rhône and Total where the Administrative Court of Marseille invalidated Total’s permit to operate a biorefinery and ordered a deeper study of the climate impacts of palm oil production.
• McVeigh v Retail Employees Superannuation Pty Ltd , where a member of a super fund known generally as ‘Rest’ claimed the fund was in breach of Australia’s Corporations Act 2001 due to failure to provide information on how Rest was managing climate change risks. Although resolved in an out-of-court settlement, the case has set a strong precedent for acknowledging the material risk climate change poses for institutional investors.

Similar rulings across other categories continue to set a stronger global precedent for individuals and organizations to utilize legal avenues in their efforts to drive action on climate change.

In a landmark 2021 case ( Milieudefensie et al. v. Royal Dutch Shell ), a group of Dutch NGOs won a ruling against global energy company Royal Dutch Shell. The premise of the argument was rooted in the unwritten standard of care found in Section 162 of the Dutch Civil Code. After four days of hearings, the Court concluded that:

“The standard of care included the need for companies to take responsibility for Scope 3 emissions, especially where these emissions form the majority of a company’s CO2 emissions, as is the case for companies that produce and sell fossil fuels.”

As a result, Shell was ordered to reduce Scope 1, 2, and 3 emissions across its entire energy portfolio by 45% relative to 2019 emission levels by 2030.

Investors’ Response to Climate Litigation

The impact of such hearings and their potential repercussions raise questions around what investors should be doing, and what comes next?

There are three key aspects which require consideration:

• The need to acknowledge climate litigation as an evolving and integral risk to investee corporation operations and investment growth.
• The incorporation of litigation risk into assessments of climate-related financial risks and the integration of litigation risk into investment growth modeling.
• Encouraging comprehensive disclosure to mitigate the legal risks as much as possible.

The growing occurrences of natural disasters, whether extreme flooding in Germany , sweltering heat waves in the US and Canadian Pacific Northwest, raging bushfires in Australia, or record typhoons and cyclones in Thailand, have become deeply emblematic of a world increasingly affected by climate change.

The global scope and varying intensity of climate change events not only poses a direct risk to investors’ physical assets, but it also underscores the consequent risk of and need for transitioning towards a low-carbon economy. Therefore, adding to these risks the risk of potential legal action emphasizes how climate litigation is not just an additional dimension to physical and transition risk, but a separate risk to be assessed.

Addressing these conditions and their interplay through more robust emissions data and diligent reporting is therefore imperative, not just for corporations and investors, but for asset owners and managers as well. As investors, corporations, and countries plan and progress in their respective Net Zero transitions, such legal battles are only going to multiply in the coming years.

One Comment

As a debater, this article is one of the most useful thing’s I’ve ever found. It completely non-uniques the litigation DA. Subodh Mishra, you are a savior and forever in my heart.

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Article Contents

1. introduction, 2. climate change and human rights, 3. statutory interpretation, climate change and rights, 4. the development, meaning and use of the principle of legality, 5. making the link between climate change, fundamental rights, and statutory interpretation, 6. the value of principle of legality-reasoning, 7. conclusion.

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Climate Change, Fundamental Rights, and Statutory Interpretation

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Ceri Warnock, Brian J Preston, Climate Change, Fundamental Rights, and Statutory Interpretation, Journal of Environmental Law , Volume 35, Issue 1, March 2023, Pages 47–64, https://doi.org/10.1093/jel/eqad002

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The climate change crisis demands a wholesale transformation of law. In this article, we consider one potential component of that transformation: the role that rights-protective statutory interpretation might play. Specifically, we analyse the transformative potential of the principle of legality. The principle of legality is a presumption of statutory interpretation that legislation should not be read as infringing fundamental common law rights in the absence of irresistibly clear statutory language. It enables courts to give statutory words their least rights-infringing meaning. The law in international fora and domestic jurisdictions now acknowledges that climate change will adversely affect human rights. We make the linkage between climate change, fundamental rights, and statutory interpretation and argue that the principle of legality may, in appropriate cases, be used to interpret legislation regulating the range of human activity, in a climate-protective way.

To address the challenge of climate change, commentators suggest that there needs to be a wholesale transformation of the economy. 1 But there also needs to be a wholesale transformation of law. Such transformation requires integration—integration between policy, legislation, legal reasoning, and adjudicative decision-making. 2 In relation to the latter, Joanna Bell and Liz Fisher have posed the question: What does it mean ‘to “adjudicate well” in relation to climate change legislation and thus... incorporate ‘climate change into the substructure of the law’? 3 Given the current, precarious state of the environment, there may be a temptation to seek answers in legal revolution. However, as Fisher counsels, ‘legal pasts’ should not be abandoned in this endeavour but rather drawn upon as a resources for present and future legal reasoning. 4

In this article, we take inspiration from Fisher and draw upon legal reasoning rooted in legal pasts to facilitate one possible component of that transformation. We consider the role that statutory interpretation might play in ensuring that climate change considerations infuse decision-making throughout the legal landscape. Specifically, our focus is the linkage between climate change, fundamental rights, and a common law principle of statutory interpretation, that is: the principle of legality. 5

Our argument and the structure of this article is as follows: in Section 2, we demonstrate that the law in many international fora and domestic jurisdictions now acknowledges that climate change impacts will adversely affect fundamental human rights. As we discuss, the rights impacted include the right to life, right to the fundamental conditions of life, liberty and security of the person, and the protection of indigenous lands and culture.

Section 3 explains the role that statutory interpretation plays in linking rights-based reasoning and climate change considerations. To be clear, we are not considering how human rights could be used to interpret statutes directly; such an approach misses an important link in legal reasoning. Rather we are considering how statutes might be interpreted using the principle of legality, and the application of the principle necessitates a stepped process as we discuss.

Section 4 explores the principle of legality. In brief, the principle of legality is a common law canon of statutory construction that may be employed in circumstances where a party alleges legislation should be interpreted in a way so as not to infringe fundamental human rights, freedoms, and values—and those rights may have been created by legislative instrument or the common law. Where there is a choice of statutory construction, the principle requires a court to choose the interpretation that better upholds human rights. Accordingly, the principle has an important rule of law function; it can be and is being used by courts to protect fundamental human rights. The principle of legality can be used to interpret all legislative forms: from constitutions, and primary legislation, to regulations and by-laws. Its use can impact both the outcome of cases and enrich legal doctrine, as we explain below. It is important to note that while many bills of rights contain interpretative provisions that have similar effect to the principle of legality, 6 they do not usurp or replace that common law canon. 7 Accordingly, the principle of legality is a tool that exists in judicial reasoning whether nations have enacted bills of rights or not.

In Section 5, we demonstrate how, in appropriate cases, the principle of legality can be used to bring climate change considerations into adjudicative decision-making via rights-based reasoning. For example, if interpreting legislation in one way will allow for an increase in greenhouse gas emissions, leading to greater climate change impacts and a correlative impact on rights, the principle of legality requires the court to explore if there are equally available ways of interpreting the legislation that would not infringe human rights. Accordingly, in appropriate scenarios, the principle of legality will allow climate change considerations to infuse adjudicative decision-making via the process of statutory interpretation. Note, we do not confine our argument to the interpretation of specific schemes promulgated to address climate change—it does not matter if the legislation has climate change as its focus or not— all legislation, governing every aspect of human ordering, may be susceptible to the principle of legality analysis we propose.

Finally, in Section 6, we consider why the use of the principle might be advantageous and what gaps in the existing law it fulfils—particularly in this age of rights instruments. Our analysis relies predominantly on the law in New Zealand and Australia, with some discussion of the situation in the UK, however the principle of legality is employed in many common law countries and our argument may well be adaptable to other jurisdictions. In Section 7, we conclude.

We acknowledge that embedding climate change considerations into the ‘substructure of the law’ 8 relies upon ‘climate conscious lawyering’, 9 that is, an active awareness on the part of lawyers ‘of the reality of climate change and how it interacts with daily legal problems’. 10 But consciousness alone is not enough. Lawyers are still required to draw upon existing legal tools to make climate-protective arguments. As we argue, the principle of legality supports reasoning that legislation should be interpreted in as climate-protective a way as possible, and used in this way the principle can help infuse climate change considerations into the wider law.

Before considering the principle of legality in greater detail, we must first lay out the foundational aspect to our argument, that is the link between climate change and human rights. There is, of course, a long history of human rights law being used to protect environmental interests. 11 Further, the clear factual and legal link between climate change and the abrogation of fundamental human rights is no longer conjecture, rather it has been affirmed in various international fora and judicial decisions around the world. 12

Reflecting the growing consensus internationally, the link between climate change and human rights is acknowledged in the Preamble to the Paris Agreement, 13 and has been formally accepted in resolutions by the United Nations Human Rights Council, 14 and various regional commissions and assemblies. 15 It is possible to trace the trajectory of reasoning in the United Nations Human Rights Committee (UN HRC)—from a willingness to acknowledge environmental impacts on rights 16 to the acceptance that climate change provides a valid basis for relief. In Teitiota v New Zealand , 17 the UN HRC accepted that the impact of climate change and associated sea level rise threatened the habitability and security of inhabitants on Kiribati, and created a real risk of impairment to the right to life under Article 6 of the International Covenant on Civil and Political Rights (ICCPR) in principle, albeit the claim for refugee status was unsuccessful on the specific facts. 18 Most recently, in Torres Strait Eight v Australia , 19 eight Torres Strait Islander people and six of their children brought a complaint to the UN HRC against the Australian government, alleging that Australia violated their rights under Articles 6 (the right to life), 17 (the right to be free from arbitrary interference with privacy, family and home) and 27 (the right to culture) of the ICCPR due to the government’s failure to address climate change. The Committee found in favor of the claimants, holding that Australia had violated their rights to culture and to be free from arbitrary interference with privacy, family and home, but not the right to life. In reaching this conclusion, the Committee considered the claimants’ close, spiritual connection with their traditional lands, and the dependence of their culture on the health of the surrounding ecosystems. 20 While the majority of the Committee held that there was currently no violation of the claimants’ right to life, it recognised that ‘without robust national and international efforts, the effects of climate change may expose individuals’ to such a violation. 21 Individual opinions issued by the minority of the Committee, however, did find that the claimants’ right to life had already been violated. 22

Writing in 2018, following the successful cases of Leghari v Federation of Pakistan 23 and Urgenda v The Netherlands , 24 Peel and Osofsky reported ‘a growing receptivity’ of domestic courts to the framing of climate change litigation in human rights terms. 25 Other scholars have mapped the relevant litigation by considering the type of claims pleaded, role of rights in submissions, relevant actors, forms of rights impacted, degrees of success and remedies. 26 As one of us discusses in a recent article, claims at the domestic level fall into three main causes of action premised upon breaches of international and regional treaties, constitutional rights, and rights in statutory instruments, and some encompass a combination of those claims. 27 It is not the purpose of this study to closely analyse or catalogue those cases; interested readers are referred to the relevant literature. Our focus is to demonstrate how a principle of statutory construction may be used to interpret statutes in a way that upholds human rights and in doing so, address climate change. Accordingly, the important point for our argument is that numerous cases in jurisdictions around the world, have now acknowledged the factual link between climate change and human rights . The rights impacted include: the right to life; 28 the fundamentals of life; 29 the dignity of the person; 30 liberty and the security of the person; 31 privacy; 32 and family and home life. 33 Other cases currently before the courts, rely on additional causes of action, including breaches of indigenous rights to ancestral lands and cultures, 34 the right not to be discriminated against, 35 and the protection of private property. 36 Climate change is likely to impact multiple rights and many cases plead the risk to or breach of overlapping rights. 37 Cases decided in the last few years illustrate how the link between climate change and human rights is becoming increasingly accepted factually and proving legally determinative in different ways. Four recent cases illustrate this legal diversity.

Neubauer et al v Germany , 38 for example, involved a constitutional complaint regarding Germany’s Federal Climate Protection Act (the Bundesklimaschutzgesetz ). The young complainants challenged the Climate Protection Act on the basis that the emission reduction targets were insufficient and violated their human rights as protected under the Constitution of Germany, the Basic Law ( Grundgesetz ), including the right to life and physical integrity [Article 2(2)], right to property [Article 14(1)] and right to the protection of ‘natural sources of life’ (Article 20a). The German Constitutional Court held that the failure of the Climate Protection Act to set greenhouse gas emission reduction targets beyond 2030 limited inter-temporal guarantees of freedom. 39

In Milieudefensie et al v Royal Dutch Shell plc , 40 Milieudefensie and six other plaintiffs alleged that Royal Dutch Shell (RDS) committed a tortious act and violated its duty of care under the Dutch Civil Code by emitting greenhouse gas emissions that contributed to climate change. In interpreting Article 6:162 of the Code, the District Court of The Hague drew on the ICCPR and the European Convention of Human Rights and cited Urgenda v The Netherlands . 41 The Court found that climate change threatens the right to life and the right to respect for private and family life of Dutch residents and the inhabitants of the Wadden region. 42 The Court ordered RDS to reduce net emissions across its portfolio by 45% by 2030. 43

Waratah Coal Pty Ltd v Youth Verdict Ltd and Ors 44 is the first case to emerge from Queensland’s Human Rights Act 2019 (HRA 2019). The case concerned applications for a mining lease and an environmental authority for a new coal mine before the Queensland Land Court. The objectors submitted that a decision to grant a mining lease and an environmental authority for the mine would be unlawful under s 58(1) of HRA 2019. Waratah Coal, applied to strike out the human rights objections to the extent that they relied on the HRA 2019 or, in the alternative, obtain a declaration that the Land Court does not have jurisdiction and was not obliged to consider those objections. 45 The Land Court rejected the strike out application and held that human rights considerations apply to the Land Court in making its recommendations on applications for a mining lease and an environmental authority as it is compelled by the HRA 2019, as a public entity, to make a decision in a way that is compatible with human rights. 46 The Land Court confirmed that objectors would be entitled to seek relief in the event the Court failed to make a recommendation compatible with human rights. 47 In giving final judgment, the Court accepted that the mining and (inevitable) burning of the coal would increase climate change impacts and breach a range of human rights. 48 Accordingly, the Court recommended that the Minister decline consent, as permission would constitute a breach of the Minister’s duties under the HRA 2019 to protect rights.

Another recent example of litigation premised on statutory rights is Mathur v Ontario , 49 an application by Ontario to strike out a claim brought by young people against government inaction on climate change. In dismissing the strike out application, the Court accepted the prima facie nature of the applicants’ claims that climate change could ‘increase the risk of death’ 50 and ‘interfere with the Applicants’ ability to choose where to live... [so engaging] the ‘liberty’ interest in s 7 [of The Canadian Charter of Rights and Freedoms 1982]. 51 The Court also accepted that government inaction on climate change could lead ‘to an increase in serious psychological harm and mental distress... [and] prima facie engages the security [of the person] interest in s 7’. 52

None of the cases referenced above rely upon the principle of legality-argument that we posit; rather, all show how courts have started the journey of linking climate change and human rights in different legal contexts. Our purpose in this article is to advance that progress by showing how one legal tool could be used to develop the climate-rights relationship across different types of adjudication.

Having illustrated the link between climate change and rights in the previous section, we move to considering the role that statutory interpretation might play as a mechanism to secure that link in legal reasoning. Mathur and Waratah Coal aside, many of the successful cases referenced in part one are based on breaches of justiciable rights in codified constitutions. 53 Nevertheless, this development raises an intriguing possibility for lawyers in nations without those constitutional foundations but with extensive statute-based law, such as New Zealand, Australia, and the United Kingdom: Could that ‘climate change-rights linkage’ inform statutory interpretation , and by so doing ensure climate change considerations infuse the wider law in those nations?

There are three possible legal routes for this wider infusion to occur. First, courts in each of those nations draw upon international treaty law, including international human rights treaties, to inform the interpretation of domestic statutes where appropriate. Australia, New Zealand and the UK are dualist states; they have ratified various international human rights treaties; 54 and these commitments have been imported into domestic law in various ways. 55 Some jurisdictions have empowered courts to interpret domestic law in a way that is compatible with international law and human rights instruments, by enacting legislative provisions. 56 Nevertheless, there is common law authority in each nation providing that courts will interpret domestic legislation consistently with international treaty law commitments where possible, whether or not the legislation was enacted with the purpose of implementing the relevant treaty text. 57

Second, both New Zealand and the United Kingdom have statutory bills of rights that require courts to interpret legislation in a manner consistent with the enumerated rights where possible—New Zealand has s 6 of the New Zealand Bill of Rights Act 1990 and the UK has s 3(1) of the Human Rights Act 1998—and three Australian states have similar legislative provisions: Queensland, Victoria, and the Australian Capital Territory. 58 Although all statutory formulations are slightly different, 59 and a complex jurisprudence has built up around the application of the provisions, 60 the core premise that interpretation be compatible with rights where possible is consistent across jurisdictions. 61

Third, courts in all three nations draw upon the principle of legality in interpreting legislation to protect fundamental common law rights. As we explain below, broadly understood, the principle of legality is a common law principle of statutory interpretation that favors rights-consistent interpretations of legislation where possible. Each of these three potential legal routes demand careful scholarly attention, but in this article we focus solely on the lesser known principle of legality and the role that it might play, for good reasons as we explain in Section 6.

In this part, we explain the principle of legality. Our purpose is not to critique the principle from an academic perspective, question whether it is constitutionally defensible, or map the entire scholarly literature. Rather, we are concerned with explaining the principle in sufficient detail to advance our argument.

The principle of legality is a presumption of statutory construction that protects fundamental rights, freedoms, and values against infringement by general or ambiguous legislation. The principle is of ancient pedigree, emerging in the common law courts of England in the 1600s 62 and crystallising in the mid 1800s, 63 although it did not attract the modern moniker until much later. 64 The principle appeared in other jurisdictions, such as the USA and Australia in the 18th and 19th centuries, 65 and today is employed in common law jurisdictions around the world. 66

Initially, the principle was encapsulated in the idea that ‘a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words which point unmistakably to that conclusion’. 67 Historically, that approach has been said by some to reflect the resistance of the common law judges to incursions by statute law in an era where the constitutional principle of parliamentary sovereignty had not fully fomented. 68 Over time, however, that traditional rationale narrowed. With the rise of the welfare state and the resulting ‘orgy of statute making’, 69 it was no longer reasonable for the courts to assume that governments did not want to supplant the common law with legislation. 70 There was a shift in focus and the principle came to be seen as a way of protecting fundamental rights in person and property. Sales LJ captures the modern focus, explaining extra-judicially that, ‘[u]nder the principle of legality, a fundamental right is treated as respected by a statutory provision unless abrogated by express language or clear necessary implication’. 71

In early cases, the courts presumed that Parliament would not intend infringement of rights in the absence of irresistibly clear statutory language and so relied upon ‘an anterior assumption about legislative intention’. 72 The courts credited legislatures with a sincere intention not to override rights without careful thought and deliberate action. The fundamental nature of the protected rights meant that the courts attributed to Parliament clear knowledge of those rights when passing legislation and the need to be explicit if it intended to remove those rights. However, more recent cases have tended not to rest upon the rationale of prior parliamentary intent. In R v. Secretary of State for the Home Dept, ex p Simms , Lord Hoffmann explained 73 :

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights.... The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

Latterly, the principle of legality has been recast as one governing the relationship between the legislature, the executive, and the courts, 74 and that recalibrated rationale acts to strengthen the judicial commitment to the principle. Lord Hoffmann stated that the principle was ‘a presumption of general application operating as a constitutional principle’. 75 In agreement, and questioning the modern moniker, Sales LJ suggested that, ‘[i]t might be better expressed as the principle of respect for constitutional rights and principles’. 76 In the Electrolux case, the High Court of Australia described the principle as a central aspect of the rule of law. 77 As Gleeson CJ opined 78 :

the presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted.

In applying the principle of legality, courts tend to follow a threefold process. First, the fundamental rights, freedoms or values that have been breached or are at risk of infringement through action regulated by a statute or executive action, must be identified. 79 Second, a court will ascertain whether the relevant legislation interferes with this right. 80 Third, a court will assess whether the principle of legality operates to constrain any interference with the fundamental right. Note, the precise approach that courts take to each of these three steps varies between jurisdictions and between categories of case, as we discuss briefly in Part 6. 81 Further, in relation to the third step, the nature and content of a statute will affect the impact of the principle of legality and the outcome in the case. The legislature may have deliberately intended to breach rights. For example, specific legislation may have been promulgated to protect existing polluters, despite the impact on rights. However, that fact does not change the operation of the three-step process set out above.

Critically, Joseph states, ‘[t]he more important the right and/or the more intrusive the legislation, the stronger the presumption is against the statutory abrogation or limitation of it’. 82 Explicit language will be required to abrogate a fundamental right and, as Kiefel J observed in X7 v Australian Crime Commission 83 :

[t]hat is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so.

Which rights, freedoms or values will suffice to meet the first stage of the test is contestable. 84 Courts will readily employ the principle in respect of rights already recognised by the courts as fitting within the recognised class of fundamental rights, 85 including: personal rights, such as personal liberty, 86 freedom of movement, 87 and freedom of expression 88 ; property rights, such as the right from alienation of property without compensation 89 and the enjoyment of privacy and property free from intrusion 90 ; procedural rights, such as the right to procedural fairness 91 ; and, in the New Zealand context, the cultural rights of Māori people. 92

There is no clear methodology for how and when a right or freedom becomes fundamental at common law, and ‘what rights and freedoms are recognised as fundamental at common law is ultimately a matter of judicial choice’. 93 However, as with all common law developments, there is scope for the rights protected by the principle to expand and change over time. In the UK context, Varuhas notes the expansion of coverage from protected private rights to wider values and constitutional principles. 94 In the case of Fitzgerald v R , decided in 2021 by the New Zealand Supreme Court, Winkelman CJ stated the principle of legality was ‘not displaced or confined by statutory bills of rights and continues to develop’. 95 As one of us has argued elsewhere, the principle might also develop to protect rights already recognised within international human rights law, such as the right to life and rights specifically related to climate change, such as the right to a safe climate. 96

In practice, the principle of legality enables courts to give words their least rights-infringing meaning, to read down literal meaning, and to making statutes subject to some unexpressed qualification. 97 Further, the application of the principle of legality can arise in any statutory context, including criminal, administrative and private law. 98 Judges have a whole suite of tools of statutory interpretation available to them, different tools may be appropriate in different circumstances, and the choice of one tool over another can lead to different interpretative results. 99 However, in cases where rights are impacted, the principle of legality facilitates a clear, principled approach to legal reasoning, as we explain below.

With the link between climate change and fundamental rights firmly established, can we now propose that to protect rights courts should prefer legislative interpretation that promotes limiting greenhouse gas emissions or fostering adaptation to climate change wherever possible? In this part of the article, we undertake thought experiments to show the utility of our argument. First, we first consider a real case: Greenpeace v Genesis decided by the New Zealand Supreme Court in 2008. 100 The parties in Greenpeace did not advance any rights-based arguments (perhaps due to the age of the case). However, Greenpeace provides a good example of where our argument could have facilitated both a climate-protective result and clarified the legal reasoning in the case. Second, we provide select examples of other regulatory schemes that might be susceptible to our ‘climate-rights-interpretation’ argument.

In Greenpeace , the applicants, Genesis Power, wanted to establish a gas-fuelled power station that would emit millions of tonnes of greenhouse gases and other pollutants over its lifetime. The relevant environmental planning legislation—the Resource Management Act 1991 (RMA)—has a statutory purpose of promoting the ‘sustainable management of natural and physical resources’, 101 and creates a statutory presumption against any industrial air pollution. Accordingly, the applicants would have to apply for specific consent to pollute. Consent to pollute is determined under s 104, that is expressly ‘subject’ to the sustainable management purpose of the Act. Before applying for consent, the applicant sought a declaration in relation to the meaning of s 104E of the RMA. Section 104E adds an additional legal test to the criteria that the consenting authority must follow in s 104. For present purposes, the contentious wording in s 104E was, when considering an application that would emit greenhouse gases, ‘a consent authority must not have regard to the effects of such a discharge on climate change ’. 102

These words clearly constitute a prohibition but in the Greenpeace case there was a dispute about what precisely they were prohibiting. The parties argued two conceptually distinct meanings. The first possible meaning was that an activity’s climate change-forcing impact should be disregarded—the result being that fossil fuel-use would be a neutral consideration in the consenting process. However, the alternative meaning was that decision-makers should not attempt to (re)evaluate the effects of greenhouse gases on climate change, that is, they should not debate whether greenhouse gases actually lead to climate change, or how this particular activity’s emissions would impact the climate (which, as Chief Justice pointed out in her judgment, would be impossible to do). That meaning would allow decision-makers to take in to account the climate change-forcing aspects of developments that emitted greenhouse gases but not open-up the whole issue as to whether emissions led to climate change—rather, that fact should be taken as read.

Over the course of the litigation, nine appellate judges considered this section, some of them more than once, and there was a divergence of views, particularly given the purpose of the Act to promote sustainable management. In the Supreme Court however, the majority found in favor of the first meaning, that is, the climate change-forcing aspect of the proposal must be ignored by the decision-maker. The majority adopted a confined, textualist approach to statutory interpretation. 103 In dissent, and adopting a purposive approach, the Chief Justice found in favor of the alternative meaning. Her Honour said that consent authorities must consider an activity’s emissions and their impact on climate change as a negative factor in the consenting process. That approach was, in her opinion, the only way to promote the sustainable management purpose of the Act.

Latter academic comment notes the divergent approach to statutory interpretation in the Supreme Court. 104 Clearly, the decision reflected individualised preferences, with different judges prioritising one mechanism of interpretation over another and there was a lack of unifying principle in the case. As we explained, counsel did not advance nor did the Justices invite submissions on wider doctrine. There was certainly no suggestion of the statutory provision raising a human rights issue or impacting on fundamental norms and values of the common law. However, given the clear linkage between climate change and human rights, what would have happened if the principle of legality had been employed to present a rights-based argument to the Court?

If our ‘climate-rights-interpretation’ argument had been made, opponents could have argued, ‘where the text of a statute presents constructional choices, the principle of legality will favor that choice which least disturbs common law freedoms’, 105 that is, that the statute requires the consent authority to consider greenhouse gas emissions because their impact on climate change imperils fundamental human rights. The Court would have been required to consider the three-step process set out in part three above by: first, identifying rights at risk; second, considering whether the legislation interferes with those rights; and third, assessing whether the principle of legality operates to constrain any interference with those rights.

While there are undoubtedly complexities to address in this re-imagining and much would depend on the specific evidence and submissions, 106 Greenpeace provides an accessible example of how the principle of legality might shift legal reasoning—requiring those interpreting statutes to do so in a way that best addresses the preservation of rights in the face of climate change. In the Greenpeace case, the principle might also have acted as the touchstone for reasoning lacking in the disparate judgments. The conclusions reached by judges in relation to each of the three steps may well differ, but all would be using the same tool, so allowing for a principled approach to legal reasoning. In future cases, when questions arise as to how to interpret legislation in the face of climate-rights arguments, the principle of legality can provide a doctrinally defensible and unifying approach to legal reasoning.

The application of the principle of legality can clearly extend beyond the statutory provision and the facts in the Greenpeace case. Whilst the climate change-rights linkage appears most readily in planning, development, and environmental law, contextually it could apply whenever climate change exacerbation, mitigation, or adaptation is factually in issue. In the New Zealand context, for example, a myriad of legislative schemes could be susceptible to a principle of legality analysis that links human rights and climate change. Examples include legislative schemes concerning special planning provisions 107 ; infrastructure development 108 ; investment 109 ; conservation 110 ; company 111 ; and even criminal law. 112 In respect of the latter, principle of legality-reasoning might be used to redefine statutory tests, such as the defence of ‘necessity’. Over the last few years, a number of climate change protestors in New Zealand have been charged with offences under the Trespass Act 1980. 113 Section 3(2) of that Act states:

It shall be a defence to a charge under subsection (1) if the defendant proves that it was necessary for him to remain in or on the place concerned for his own protection or the protection of some other person, or because of some emergency involving his property or the property of some other person.

Although, rights-based jurisprudence has not yet developed in New Zealand in this context, arguing a defence of necessity premised on the climate change emergency appears to be an emerging trend, globally. In the UK, some magistrates and juries are delivering not guilty verdicts for climate change activists accused of trespass and criminal damage, despite judges advising the jury, where there is one, to reject defences of climate necessity as not validly based in existing jurisprudence—a phenomenon termed ‘jury nullification’. 114 In other nations, legal defences based on climate necessity are gaining traction, and some appear to have met with success. 115 As argued by one of us elsewhere, a principle of legality analysis that links human rights and climate change in the Australian context could be engaged in the interpretation of legislation which creates offences for protestors seeking to disrupt operations at a coal mine. 116 This would necessitate consideration of the operation and effect of that legislation in order to answer the question of whether it impermissibly burdens the recognised fundamental right to freedom of expression and the implied freedom of political communication. Readers will no doubt see other possibilities in legislative schemes in other jurisdictions.

We have shown in the previous section how principle of legality-reasoning can be beneficial in upholding rights at risk from climate change. However, the question remains: what real value is there in focusing upon the common law principle of legality? Not all, but many of the types of decisions discussed above (including the decision of the consenting authority considered in Greenpeace ), will be made by the executive or constitute ‘public function-decisions’, and decision-makers are subject to direct duties under the relevant statutory bills of rights legislation to uphold statutory rights. A failure to do so may found a basis for judicial review. 117 Accordingly, public lawyers will no doubt ask: ‘what conceptual work could the principle of legality actually do here?’ Moreover, statutory bills of rights may have greater strength in protecting rights. As the NZ Supreme Court has accepted, the statutory bill of rights in New Zealand mandates a more proactive approach to interpretation than ‘orthodox formulations of the principle of legality’ by 118 :

proactively seeking a rights consistent meaning... [and]...“allows for reading down otherwise clear statutory language, adopting strained or unnatural meanings or words, and reading limits into provisions”.

Nevertheless, we suggest four reasons not to overlook the possible role of the principle of legality in infusing climate change impacts into statutory interpretation through a rights-protective construction.

First, the principle of legality persists through time and pervades judicial reasoning. In turn, it provides a means of non-regression, potentially cushioning rights-based reasoning from any roll back on statutory rights-protections. 119 By way of example, consider the current proposals in the UK to repeal and replace the Human Rights Act 1998. In June 2022, the Government introduced the Bill of Rights Bill to the Parliament and while the Bill would retain the suite of EU Convention rights in domestic legislation, it would remove the duty on courts to interpret legislation compatibly with those Convention rights. 120 There have been serious criticisms of the Bill of Rights Bill from many sectors of society and at the time of writing the progress of the Bill has been paused. 121 Nevertheless, in the event of the Bill progressing in its current form, and s 3(1) of the Human Right Act being repealed, the common law principle of legality will assume heightened importance in the UK as a judicial means for protecting fundamental rights. This is because repealing the Human Rights Act cannot repeal the existing common law principle; it will still exist and operate as a brake on legislation.

The second reason is that the principle of legality fills in the interstices left by statutory bills of rights. If a statutory bill of rights exists to regulate acts of government and those with public duties, one may not need recourse to the principle because the breach will be determined by the statutory provisions. Nevertheless, even in those circumstances the principle can act as a backstop in three ways. First, it can be used to interpret statutory bills of rights in the event of specific interpretative provisions not existing or being removed from those statutes (as is the case with the UK proposals). Second, it may be used to expand coverage over different actors, acts and omissions. With statutory bills of rights, one must first consider if a specifically regulated government authority has apparently acted incompatibly with the relevant bill of rights. Only then does judicial reasoning shift to considering the interpretation of the empowering legislation. 122 With the principle of legality, the requirement that the breach be committed by a specific category of regulated actor is not required. Accordingly, the principle may have a wider reach in terms of whose actions it can apply to, including private corporations. Third, the principle of legality has potentially a wider scope than statutory bills of rights, by expanding upon the suite of rights protected under those Acts, and by protecting rights that may be important in the climate change context. For example, the right to property is commonly omitted from statutory bills of rights 123 but in the climate change context, there may be clearer scientific evidence in specific cases concerning the adverse impacts on property (what, where, and how property will be impacted) than there is concerning its impact on the loss or impairment of life. The right to private property is a fundamental common law right, characterised by Blackstone as an absolute human right, 124 and has traditionally been strongly supported by the principle of legality. 125 It is not the role of this article to unpack the right to property but the actual physical loss of land resulting from runaway climate change could provide a basis for allegations of breach in a principle of legality analysis. Further, as a common law mechanism, there is scope for the range of rights protected by the principle of legality to grow, as Winkelman CJ noted in Fitzgerald . 126 In particular, the principle is arguably capable of expanding to encompass rights protected under international human rights treaties and developing climate change rights. 127 In the event of statutory bills of rights being amended or repealed (as is the possibility in the UK) one can imagine the principle would develop to encompass the right to life, which has been described as ‘the most fundamental of the rights’ and ‘an absolute right’. 128 The right to life has been interpreted to include the right to a quality environment, such as a healthy environment, in which to live. 129

The third reason is that the value of the principle is not just in preferential outcomes, it can also lead to deeper and more consistent analysis in the interpretative process. Classical versions of the principle of legality have organisational force in legal reasoning as the principle establishes a clear methodology for courts to follow. To quote Gans, writing in the Australian context, ‘[t]he principle’s rule like operation permits courts to make exceptionally clear statements about why they opt for a particular reading of a statute’ 130 Think again about the Greenpeace case discussed above. Drawing on the principle of legality may have provided the capstone under which legal reasoning could coalesce and introduced a clarity lacking in the disparate judgments.

The fourth reason is that classical versions of the principle of legality are not diluted by a proportionality test. Undoubtedly, question of proportionality constitutes the most intriguing aspect of the principle: should a principle of legality methodology incorporate proportionality? And if so, what form should that proportionality analysis take? Traditionally, the principle of legality did not incorporate any form of proportionality test. 131 In contrast, statutory bills of rights provide for ‘ reasonable protection for rights’. 132 That is, they contain limitation provisions that direct courts to consider the legislative policy behind the rights-infringing statute and, if it is justified, apply the transgressing text regardless. The rationale for this approach relies upon an admix of constitutional principles (parliamentary supremacy, and a correct understanding of the way various sections in Bill of Rights instruments work together) and realpolitik (rights are not absolute and resources available to ensure rights-protections are not unlimited). Justification is tested against a particular measure or standard, that is, proportionality.

However, courts in New Zealand and Australia have not explicitly grafted a proportionality test onto principle of legality-reasoning. 133 The principle is employed to determine the legal meaning of a statutory provision, not to evaluate whether a policy choice to abrogate rights could be justified. As Meagher argues, a proportionality inquiry is of necessity context and case specific, and conflating principle of legality-reasoning with a proportionality test would obscure the common law rights of which Parliament is supposed to be cognisant in legislating. 134

In the UK, we see a different approach where the Supreme Court has developed the methodology of the principle of legality to include a form of proportionality in administrative law cases. Varuhas terms this approach, an ‘augmented’ principle of legality, and notes it has provided greater protection for rights in some cases. For example, where the legislature has provided clear and express words abrogating rights of access to justice, the UK Supreme Court has applied a test of ‘least intrusive means’, 135 meaning that ‘rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment’. 136 Further, ‘disproportionate interference [with fundamental rights]... can only be sanctioned by statutory words specifically authorising disproportionate interferences’. 137 In the ‘prisoners cases’ concerning delegated legislation, general words that would require deference in substantive review are susceptible to a principle of legality analysis without deference, because statutory interpretation is for the courts not the executive in the UK. 138

The differences in content and application of the principle of legality evidences the importance of legal culture and the type of right infringed is also important. However, if the principle of legality was to be subject to a proportionality test, we can imagine this might create an analytical pressure point in the climate change context—is the rights-infringing provision proportionate? We cannot give an answer to that question in the abstract: proportionality analysis invariably requires ‘judges to answer questions that are more political and philosophical than legal’, 139 and a judge may be receptive to or confronted by such value-infused analysis depending upon the legal and cultural context. 140 If proportionality is to be grafted on to a principle of legality-test, this fourth step would undoubtedly enrich the doctrine, but suffice to say it is a matter of general academic debate as to whether the principle should be subject to proportionality at all.

The principle of legality undoubtedly raises fundamental questions about the rule of law. It is trite to state that it brings into stark relief the tension between constitutional theorists and re-ignites arguments about the indeterminacy of rights. 141 Its use in the climate change sphere is likely to create resistance from the powerful sectors who profit from the polluting activity that causes climate change, and of course there is a risk that it could be weaponised by those entities. They might, for instance, seek to invoke the principle to protect their property interests in fossil fuels or as supporting deforestation. There are also very specific doctrinal debates about when the principle should be engaged, the rights it protects, and its scope and content.

But should these questions and debates prevent the principle of legality being raised and carefully debated in statutory interpretation when climate change impacts on rights, or indeed the relevance of enumerated rights or rights contained in international treaty law, are in issue? Arguably not, and indeed all three approaches may often be compatible and employed together where possible. We are at a moment in time when rights are not only at risk but lives are being taken by climate change, and it would be legally and perhaps constitutionally wrong if the judiciary did not consider seriously arguments linking climate change, the abrogation of fundamental rights, and the construction of statutes.

Nicholas Stern ‘The Economic of Climate Change: The Stern Review’ (CUP 2007); Dieter Helm and Cameron Hepburn (eds) ‘The Economic and Politics of Climate Change’ (OUP 2011); Stuart Mackintosh ‘Climate Crisis Economics’ (Routledge 2021).

Joanna Bell and Elizabeth Fisher ‘The Heathrow Case in the Supreme Court: Climate Change Legislation and Administrative Adjudication’ (2023) 86 MLR 226 quoting Elizabeth Fisher, Eloise Scotford and Emily Barritt ‘The Legally Disruptive Nature of Climate Change’ (2017) 80 MRL 173.

Elizabeth Fisher ‘Going Backward, Looking Forward: An Essay on How to Think about Law Reform in Ecologically Precarious Times’ (2022) 30 NZULR 111; Elizabeth Fisher ‘Law and Energy Transitions: Wind Turbines and Planning Law’ (2018) 38 OJLS 528, 529–530.

We acknowledge that there will be many other ways for climate change considerations to become embedded within the ‘substructure’ of the law, most critically through direct importation into codified constitutions or, in the UK and New Zealand, via climate change statutes becoming constitutional in nature.

For example, s 3(1) Human Rights Act 1998 (UK); s 6 New Zealand Bill of Rights Act 1991 (NZ).

Fitzgerald v R [2021] NZSC 131, [51].

Bell and Fisher (n 2) 12.

Kim Bouwer ‘The Unsexy Future of Climate Change Litigation’ (2018) 30 JEL 483, 504; Brian J Preston, ‘Climate Conscious Lawyering’ (2021) 95 Australian Law Journal 51.

Preston, ibid, 51.

For example, Öneryıldız v Turkey , Application No. 48939/99 (20 November 2004); López Ostra v Spain , Application No. 16798/90 (9 December 1994); Fadeyeva v Russia [2005] ECHR 376; (2007) 45 EHRR 10.

For the voluminous academic commentary on the issue, see for example, Stephen Humphreys (ed) Human Rights and Climate Change (CUP 2010); John Knox ‘Linking Human Rights and Climate Change at the United Nations’, (2009) 33 Harvard Environmental Law Review 47; John Knox ‘Human Rights Principles and Climate Change’, in Cinnamon Carlarne, Kevin Gray and Richard Tarasofsky et al (eds) Oxford Handbook of International Climate Change Law (OUP 2016); Sumudu Atapatta Human Rights Approaches to Climate Change (Routledge 2015); Alan Boyle ‘Human Rights and the Environment: Where Next? (2012) 23 EJIL 613; Alan Boyle ‘Climate Change, Sustainable Development, and Human Rights’ in Markus Kaltenborn, Markus Krajewski, Heike Kuhn (eds) Sustainable Development Goals and Human Rights (Springer 2020); Margaretha Wewerinke-Singh ‘Litigating Human Rights Violations Related to the Adverse Effects of Climate Change in the Pacific Islands’ in Jolene Lin and Douglas A Kysar (eds) Climate Change Litigation in the Asia Pacific (CUP 2020); David R Boyd The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (UBC 2011); Ademola Oluborode Jegede ‘Arguing the Right to a Safe Climate under the UN Human Rights System (2020) 9 International Human Rights Law Review 184; contributors to (2010) 38 Georgia Journal of International and Comparative Law, Daniel Bodansky (ed) ‘Special Issue: International Human Rights and Climate Change’; contributors to (2009) 18 Transnational Law and Contemporary Problems ‘Special Issue: Climate Change and Human Rights Symposium’; UNEP Climate Change and Human Rights (UNEP, December 2015).

Paris Agreement , opened for signature 16 February 2016, UNTS I-54113 (entered into force 4 November 2016) Preamble. Note, however, many commentators have expressed disappointment that human rights are not mentioned in the text of the Paris Agreement see for example, contributors to (2019) 9 Climate Law ‘Special Issue: Implementing the Paris Agreement: Lessons from the Global Human Rights Regime’, Annalisa Savaresi and Joanne Scott (eds).

UN HRC Res 7/14 (27 March 2008) reprinted in UN Human Rights Council, Report of the Human Rights Council on its Seventh Session, 39–45, UN Doc A/HRC/7/78 (14 July 2008); UN HRC Res 10/4 (25 March 2009), reprinted in UN Human Rights Council, Report of the Human Rights Council on its Tenth Session, 65–66, 14 UN Doc A/ HRC/10/L.11 (12 May 2009).

For example, General Assembly of the Organization of American States, Human Rights and Climate Change in the Americas , OAS Doc. AG/RES. 2429 (XXXVIII-O/08), adopted at the Fourth Plenary Session, held on 3 June 2008; African Commission on Human and Peoples’ Rights, Climate Change and the Need to Study its Impacts in Africa , adopted at the 46th Ordinary Session on 25 November 2009; see also Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity—Interpretation and Scope of the Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/17.

UN HRC, Views adopted by the Committee under article 5(4) of the Operational Protocol, concerning communication No , Comm No. 2751/2016), UN Doc CCPR/C/126/D/2751/2016 (9th August 2019) at [2.3] (state’s failure to take action against environmental harm can violate its obligations to protect the rights to life (Art 6) and to private and family life (Art 17) of the International Covenant on Civil and Political Rights).

UN HRC Views adopted by the Committee under article 5(4) of the Operational Protocol, concerning communication No. 2728/2016 , UN Doc CCPR/C/127/D/2726/2016 (24th October 2019).

ibid [8.6]. Note also the NZ Supreme Court did not rule out the possibility that environmental degradation resulting from climate change or other natural disasters could ‘create a pathway into the Refugee Convention or other protected person jurisdiction’ in Teitiota v Chief Executive of Ministry of Business, Innovation and Employment [2015] NZSC 107, [13].

UN HRC Views adopted by the Committee under article 5(4) of the Optional Protocol, concerning communication No 3624/2019 , UN Doc CCPR/C/135/D/3624/2019 (‘ Torres Strait Eight v Australia ’) (22nd September 2022).

ibid [8.12]–[8.14].

ibid [8.7].

ibid Annexes I and III.

Leghari v Federation of Pakistan 2018 LHC 132.

State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Stichting Urgenda Supreme Court of the Netherlands 19/00135, 20 December 2019.

Jaqueline Peel and Hari Osofosky ‘A Rights Turn in Climate Change Litigation?’ (2018) 7 TEL 37.

For example, Annalisa Savaresi and Juan Auz ‘Climate Change Litigation and Human Rights: Pushing the Boundaries’ (2019) 9 Climate Law 244; Annalisa Savaresi and Joana Setzer ‘Rights-based litigation in the climate emergency: mapping the landscape and new knowledge frontiers’ (2022) 13 Journal of Human Rights and the Environment 7.

Brian J Preston and Nicola Silbert ‘Trends in Human Rights-Based Climate Litigation’ (2023) 49 Monash ULR, forthcoming.

For example, Neubauer v Germany , Bundesverfassungsgericht [German Constitutional Court] 1 BvR 2656/18, 24 March 2021, [148]; Urgenda (n 24) [5.6.2]; Friends of the Irish Environment CLG v Government of Ireland Irish Supreme Court 205/19, 31 July 2020 [8.14]; Friends of the Earth Netherlands (Milieudefensie) v Royal Dutch Shell District Court the Hague C/09/571932/HAZA19-379, 26 May 2021 [4.4.28] (Note, the case is on appeal to the Dutch Supreme Court); Leghari (n 23) [12]; Bernard v Duban Papua New Guinea National Court of Justice N6299, 27 May 2016 [106]; Morua v China Harbour Engineering Co (PNG) Ltd Papua New Guinea National Court of Justice N8188, 7 February 2020 [56]; Farooque v Government of Bangladesh (2002) 22 BLD (HCD) 345 (Supreme Court of Bangladesh); Court (on its own motion) v State of Himachal Pradesh National Green Tribunal of India Application No 237 of 2013, 6 February 2014; Mansoor Ali Shah v Government of Punjab (through Housing, Physical and Environmental Planning Department) 2007 CLD 533 (Lahore HC) [11].

For example, Future Generations v Colombian Ministry of the Environment Supreme Court of Columbia STC4360-2018, 5 April 2018 (key excerpts from the unofficial translation); Juliana et al v United States 217 F Supp 3d 1224.

For example, Gbemre v Shell Petroleum Development Company Nigeria Ltd (2005) AHRLR 151 (Nigeria HC) [5(4)]; Future Generations 35[11.3] and [12] (key excerpts from the unofficial translation).

For example, Kreishan v Canada (Citizenship and Immigration) 2019 FCA 223, [2020] 2 FCR 299.

[139]; Mathur et al v Her Majesty the Queen in Right of Ontario 2020, ONSC 6918 [159].

VZW Klimaatzaak v Kingdom of Belgium French-speaking Court of First Instance of Brussels, Civil Section 2015/4585/A, 17 June 2021, [2.3.1.].

Torres Strait Eight (n 19) [8.12–8.14].

For example, Smith v Fonterra Co-operative Group Ltd [2020] NZHC 419 [5-10] (case currently on appeal to the NZSC) [5-10]; ADPF 746 (Fires in the Pantanal and the Amazon Forest) Brazil Federal Supreme Court, ADPF 746, filed 24 September 2020; see also Torres Strait Eight, ibid.

Including a swathe of cases from young people filed in the ECtHR and elevated to the ECtHR Grand Chamber for hearing, for example, Duarte Agostinho and Others v Portugal and 32 Other States , European Court of Human Rights, Application No 39371/20, filed 2 September 2020; Soubeste and Others v Austria and 11 Other States , European Court of Human Rights, Application No 31925/22, filed January 2022; De Conto v Italy and 32 Other States, European Court of Human Rights, Complaint No 14620/21, filed 3 March 2021; see also ongoing litigation in Juliana (n 29).

Lliyua v RWE AG (Higher Regional Court Hamm, 30 November 2017).

For further discussion, see Brian Preston ‘The Evolving Role of Environmental Rights in Climate Change Litigation’ (2018) 2 Chinese Journal of Environmental Law 131, 157-162.

Neubauer (n 28). For analysis see Petra Minnerop ‘The ‘Advance Interference-Like Effect’ of Climate Targets: Fundamental Rights, Intergenerational Equity and the German Federal Constitutional Court’ (2022) 34 JEL 135.

ibid [122], [182]–[183].

Milieudefensie (n 28). For analysis see Chiara Macchi and Josephine van Zeben ‘Business and human rights implications of climate change litigation: Milieudefensie et al v Royal Dutch Shell’ (2021) 30 RECIEL 409.

ibid [2.4.13], [4.4.10].

ibid [4.4.10].

ibid [4.4.55].

Waratah Coal Pty Ltd v Youth Verdict Ltd and Ors (No 6) [2022] QLC 21.

Waratah Coal Pty Ltd v Youth Verdict Ltd and Ors [2020] QLC 33.

Waratah (n 44) [1346], [1352].

Mathur (n 31).

ibid [153].

ibid [156].

ibid [159].

In contrast, rights-based litigation in jurisdictions without entrenched constitutional rights has proven less successful to date, see for example, Preston and Silbert (n 27).

For example, International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195, entered into force 4 January 1969; Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (Convention against Torture); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990); Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) (Convention on the Rights of Persons with Disabilities).

For instance, many of the provisions in the Convention on the Rights of People with Disabilities are incorporated in Australian law through the Disability Discrimination Act 1992 (Cth). The Human Rights Act 1998 (UK) incorporates the rights set out in the European Convention on Human Rights (ECHR) into British law. The scope of the ECHR is similar to that of the ICCPR. The Crimes of Torture Act 1989 (NZ) implements New Zealand’s obligations under the Convention against Torture.

For example, Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32(2); Human Rights Act 2019 (Qld), s 48(3); Human Rights Act 2004 (ACT), s 32(1).

For example, New Zealand Airline Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 (NZCA), 289; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287; Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 [193] (Kirby J); Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 [18]; Ahmad v Inner London Education Authority [1978] QB 36 (UKCA), 48 (Scarman LJ). Note also, The Balliol Statement of 1992 67 ALJ 67 (duty of judiciary to interpret the law in accordance with International Human Rights Treaties). Note this approach to interpretation in often termed a principle of legality approach too, see for example, Students for Climate Change Solutions v Minister of Energy and Resources [2022] NZHC 2116 [91].

Charter of Human Rights and Responsibilities Act 2006 (Vic), s 32(1); Human Rights Act 2019 (Qld), s 48(1)-(2); Human Rights Act 2004 (ACT), s 30.

For example, c.f., Human Rights Act 2004 (ACT), s 30 (‘So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights’) with New Zealand Bill of Rights Act 1990, s 6 (‘Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning’) and Human Rights Act 1998 (UK), s 3(1) (‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’).

For example, Hanna Wilberg ‘Pandemic Litigation Reaffirms Hansen Approach But Also Exposes Two Flaws In Its Formulation’ (2022) 30(1) NZULR 69; Dinah Rose and Claire Weir ‘Interpretation and Incompatibility: Striking the Balance’ in Jeffrey Jowell and Jonathan Cooper (eds) Delivering Rights: How the Human Rights Act is Working (Hart 2003).

For example, Fitzgerald (n 7)[48]; Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557 [26]. A climate change rights-based interpretative argument was raised in R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52, [113] but not dealt with by the Supreme Court, as it had not been raised in the Court of Appeal. In R (Friends of the Earth, et al) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841, the petitioners’ claims were successful, on an ordinary construction of the Climate Change Act 2008 (UK), and the Secretary of State ordered to re-write the carbon budget to align with the net-zero target in the Act. The rights-based arguments prayed in aide and premised on s 3(1) of the Human Rights Act 1998 were rejected with Holgate J discussing the subtleties of the statutory test at [265], ‘[i]t is only if the ordinary interpretation of a provision is incompatible with a Convention right that s.3(1) is applicable... [it] does not allow a court to adopt an interpretation of a provision different from that which would otherwise apply in order to be “more conducive” to, or “more effective” for, the protection of a Convention right, or to minimise climate change impacts.’ See also Lawyers for Climate Action NZ Inc (‘LCANZ’) v Climate Change Commission [2022] NZHC 3064 (fn 157): judicial review proceedings; LCANZ submitted legislation should be read compatibly with s 6 of NZBORA but could not suggest an alternative way of reading the statute from the way the Commission had, so Court did not address argument.

Dr Bonham’s Case (1610) 8 Co Rep 107a, 77 Eng Rep 638; James Bagg’s Case (1615) 11 Co Rep 93(b) 77 Eng Rep 1271.

For example, Minet v Leman (1855) 20 Beav 269; Cooper v Wandsworth Board of Works (1863) 14 CB (NS) (Common Pleas).

The most famous modern statement of the principle of legality is from the judgment of Lord Hoffmann in the UK case R v Secretary of State for the Home Department, Ex Parte Simms [2000] 2 AC 115, 131–132. See, Dan Meagher ‘The Common Law Principle of Legality’ (2013) 38 Alternative Law Journal 209, 209–210.

For example, United States v Fisher 6 US 358 (1805), 390; Potter v Minahan (1908) 7 CLR 277, 304.

For example, Slaight Communications Inc v Davidson [1989] 1 SCR 1038; AG (SA) v City of Adelaide (2013) 249 CLR 1, 30, French CJ of the High Court of Australia confirmed that ‘statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms’.

National Assistance Board v Wilkinson [1952] 2 QB 648, 661 (Lord Devlin).

Brendan Lim ‘The Normativity of the Principle of Legality’ (2013) 37 Melbourne University Law Review 371; see also Stephen McLeish and Olaf Ciolek ‘The Principle of Legality and “The General System of Law”’ in Dan Meagher and Matthew Groves (eds) The Principle of Legality in Australia and New Zealand (Federation Press 2017).

Grant Gilmore, The Ages of American Law (Yale UP, 1977), 95.

Malika Holdings Pty Ltd v Stretton (2001) 204 CLR [28]–[29] (McHugh J). See also Andrew Burrows Thinking About Statutes: Interpretation, Interaction, Improvement (CUP 2018) 72.

P Sales, ‘Rights and Fundamental Rights in English Law’ (2016) 75 CLJ 86, 90.

Robert French ‘The Principle of Legality and Legislative Intention’ (2019) 40 Statute Law Review 40, 51.

Simms (n 64).

Edward Willis ‘Interpretive Presumptions: Catalysts for Constitutional Reasoning’ [2022] New Zealand Law Review.

Simms (n 64) [130 E].

P Sales ‘A Comparison of the Principle of Legality and Section 3 of the Human Rights Act 1998’ (2009) 125 LQR 598, 607. See also R v Secretary of State for the Home Dept, ex p Pierson [1998] AC 539 (HL), 575 (Lord Browne-Wilkinson), in the context of judicial review of administrative action, ‘[a] power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament’.

Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, [21] (Gleeson CJ).

Secretary, Department of Family and Community Services v Hayward (a pseudonym) (2018) 98 NSWLR 599; [2018] NSWCA 209, [39].

There is debate in both the scholarship and case law as to whether the principle can apply in the absence of legslative ambiguity. Lord Steyn opined that the principle applies even in the absence of textual ambiguity, Simms (n 64), 130 and see Philip Joseph ‘The Principle of Legality: Constitutional Innovation’ in Dan Meagher and Matthew Groves (eds) The Principle of Legality in Australia and New Zealand (Federation Press 2017) 39–40.

Jason Varuhas ‘The Principle of Legality’ (2020) 79 CLJ 578, 590 (describing three variants in approach: (1) express words are required to sanction interference with fundamental rights; (2) express words are insufficient to authorise disproportionate interferences; and (3) courts should pro-actively construe statutory text to limit interference as far as possible).

Joseph (n 80) 33 quoting Simms (n 64) 130.

X7 v Australian Crime Commission (2013) 248 CLR 92, [158]; [2013] HCA 29.

ibid; and see Dan Meagher ‘The Common Law Principle of Legality in the Age of Rights’ (2011) 35 Melbourne University Law Review 449.

Momcilovic (n 57) [444]; see also Hanna Wilberg ‘Interpreting Pandemic Powers: Qualifications to the Principle of Legality’ (2020) 31 Public Law Review 384, 385: ‘common law usually defines rights in terms of the elements of established wrongs or remedies as found especially in law of torts or habeas corpus’.

Williams v R (1986) 161 CLR 278, 292; [1986] HCA 88; Chief Executive of the Department of Labour v Hossein Yadegary and Anor [2008] NZCA 295 [38].

Kruger v Commonwealth (1997) 190 CLR 1; [1997] HCA 27.

Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39, 52; [1980] HCA 44.

Clissold v Perry (1904) 1 CLR 363; [1904] HCA 12; and see Durham Holdings Pty Ltd v State of New South Wales [2001] 205 CLR 399 HCA 7 [30] (Kirkby J).

ANZ Bank NZ Ltd v Financial Markets Authority [2018] 3 NZLR 377 (NZHC), [76]–[81] for a summary of the ‘ Marcel principle’.

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 [58]–[59].

Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127 [151], [237], [296], [332]; Ministry of Primary Industries v Whati [2020] NZDCR 287 [29]-[37]; Students for Climate Solutions (n 57) [99].

Meagher (n 84); Burrows (n 70) 73, noting restitution of a mistaken payment has not been regarded a ‘fundamental’ right.

Varuhas (n 81) 581–582.

Fitzgerald (n 7) [51].

Brian J Preston ‘Prospects and Pitfalls of Climate Litigation Based on the Right to a Healthy Environment in Australia’ presentation given to the Online Symposium convened by the University of Canberra, La Trobe University and the University of Technology Sydney on Realising the Right to A Healthy Environment in Australia, 6 October 2022.

For example, Fitzgerald (n 7) [220] (Arnold J): ‘the courts have long viewed that process as legitimate—indeed, necessary—where fundamental rights are involved’.

Varuhas (n 81) 579.

Diggory Bailey and Luke Norbury Bennion on Statutory Interpretation (7th ed., LexisNexis 2019).

Greenpeace New Zealand Inc v Genesis Power Ltd [2008] NZSC 112.

Resource Management Act 1991 (NZ), s 5(1).

ibid, s 104E.

For a full account, see Edward Willis ‘The Interpretation of Environmental Legislation in New Zealand’ (2010) 14 NZJEL 135.

ibid; see also Sarah Baillie ‘RMA and climate change’ (2013) New Zealand Law Journal (February) 11, for general critique of the majority decision.

Chief Justice Robert French AC ‘Bending Words: The Fine Art of Interpretation’ presentation given to the Faculty of Law, University of Western Australia, Perth, on 20th March 2014, 7.

For example, in the New Zealand legal context, whether Greenpeace as applicant could rely upon rights-based reasoning in place of individuals or would additional parties need to be joined; which specific rights might be breached on the facts; and depending on that, whether enumerated rights might provide better protection than the principle of legality in this context.

COVID-19 Recovery (Fast-track Consenting) Act 2020 (applications include major road building projects).

Infrastructure Funding and Financing Act 2020, ss 3(c–d), 27(4) (‘to provide a funding and financing model for the provision of infrastructure for housing and urban development, that... supports community needs ; and a ppropriately allocates the costs of infrastructure’ ).

New Zealand Superannuation and Retirement Income Act 2001, s 58(c) (Investment of Fund must avoid ‘prejudice to New Zealand’s reputation as a responsible member of the world community’ c.f. Public Finance Act 1989, s 65I where the Treasury appears unfettered); see also Financial Sector (Climate-related Disclosures and Other Matters) Amendment Act 2021.

Conservation Act 1987 (in relation to the interpretation of statutory text concerning concessions and conservation management plans by, for example, providing pest management to protect forest sinks).

Corporations (Investigation and Management) Act 1989, ss 5 and 6: corporations may be investigated by the Registrar of Companies if they operate ‘recklessly’ and a corporation will operate recklessly if ‘it carries on any business or operates in a reckles s manner’. Case law has not delineated the parameters of ‘recklessness’ with any specificity in this context but confirms that the legal test is to be interpreted broadly and in a way that protects the beneficiaries or public interest, see for example, Brand v Registrar of Companies [2018] NZHC 3148 [51]–[55].

Trespass Act 1980, s 3 (2).

For example, Police v Hanafin [2020] NZDC 23606; see also ongoing criminal prosecution against the ‘Ōtepoti Eight’ (RNZ), ‘Extinction Rebellion protestors arrested at coal protest in Dunedin’, 4th December 2021, available at < https://www.rnz.co.nz/news/national/457181/extinction-rebellion-protesters-arrested-at-coal-protest-in-dunedin > accessed 20 Jannuary 2023.

For example, In 2021, Extinction Rebellion protestors who caused criminal damage to Shell’s headquarters in London argued that their actions were necessary and proportionate in light of the climate change emergency. The jury acquitted them: see R v Bramwell (23 rd April 2021, Southwark Crown Court); see also R v Ditchfield (1st November 2019, Cambridge Magistrates Court) (Magistrates refused to convict; appeal allowed at High Court level). Such cases are the latest in a line reaching back to 2008 where juries of their peers have been reluctant to convict climate change activists taking direct action against emissions-intensive companies. Furthermore, see R v Roberts (Richard) [2018] EWCA Crim 2739 (UKCA) (fracking protestors; custodial sentences were excessive and breached Art 10 of the ECHR that guaranteed a right to freedom of expression). Of like effect, see, EH v Queensland Police Service and GS v Queensland Police Service [2020] QDC 205 (appeal against sentence allowed).

ADP Group (Paris Airports) v Climate Activists (12th November 2021, Court of First Instance of Bobigny, France) (protestors acquitted, measures taken justified as a ‘state of necessity’).

Preston and Silbert (n 27) 30–31. Further, see Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 (protests against logging; majority found the measures adopted by the Protesters Act to deter protesters effected a significant burden on the freedom of political communication and this burden was not justified: [152]).

For example, In the New Zealand context, New Zealand Bill of Rights Act 1990 (NZBORA), s 3 [see also HRA s 6(1)]. In Australia, rather than founding a basis for judicial review, a person may seek relief or remedy in respect of the failure of a public authority to uphold statutory rights. In Victoria and Queensland, such a claim must be attached to another cause of action [Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic), s 39; Human Rights Act 2019 (Qld), s 59]. In contrast, the ACT Human Rights Act 2004 (ACT) provides for a direct cause of action (s 40C). Note also the shift in reasoning in judicial review cases concerning climate change for example, Hauraki Coromandel Climate Action v Thames-Coromandel DC [2020] NZHC 3228, [51] (Palmer J): ‘I accept that the intensity of review of decisions about climate change by public decision-makers is similar to that for fundamental human rights. Depending on their context, decisions about climate change deserve heightened scrutiny. That is so here’.

Fitzgerald (n 7) [56], quoting Varuhas, (n 81).

The non-regression principle is one of the principles of the environmental rule of law. See, Principle 12 of the IUCN World Declaration on the Environmental Rule of Law, available at: < http://www2.ecolex.org/server2neu.php/libcat/docs/LI/MON-091064.pdf > accessed 20 January 2023.

Bill of Rights Bill 2022 (UK).

For example, The Law Society, ‘Human Rights Act Reforms and the Bill of Rights Bill’, 28 September 2022, available at: < https://www.lawsociety.org.uk/topics/human-rights/human-rights-act-reforms >; see also the joint statement from over 100 Civil Society Organisations, ‘Joint Civil Society Briefing on the Bill of Rights Bill for Second Reading in the House of Commons’, September 2022, available at: < https://www.libertyhumanrights.org.uk/wp-content/uploads/2019/12/Joint-Civil-Society-Briefing-on-the-Bill-of-Rights-Bill-for-Second-Reading-in-the-House-of-Commons-September-2022.pdf > both accessed 20 January 2023.

For example, Secretary of State for Home Department v Nasseri [2009] UKHL 23 [18] (Lord Hoffmann).

The protection of private property is not a right protected by NZBORA, the Canadian Charter of Rights and Freedoms, nor the Human Rights Act 2004 (ACT) (although note s 12: ‘privacy, family, home’ in the later) c.f. HRA that incorporates the ECHR protection of the ‘right to respect for his private and family life, his home’ (Art 8) and the protection of private property through ‘the peaceful enjoyment of his possessions’ (First Protocol, Art 1); see also Charter of Human Rights and Responsibilities Act 2006 (Vic), s 20 (‘property rights’); Human Rights Act 2019 (Qld), s 24 (‘property rights’).

William Blackstone, Commentaries on the Laws of England , (Clarendon 1983) vol I, 135.

For example, R and R Fazzolari Ltd v Parramatta City Council (2009) 237 CLR 603, [43] (French CJ). See also, Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachment by Commonwealth Laws (ALRC Report 129, 2015) 485–6.

Fitzgerald (n 7).

Preston and Silbert (n 27) 26–35; David Dyzenhaus, Murray Hunt and Michael Taggart, ‘The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation’ (2001) 1 Oxford University Commonwealth Law Journal 32–3.

For example, See, Elgizouli v Secretary of State for the Home Department [2020] UKSC 10, [14] describing the right to life in the context of the ECHR (note however, the UKSC was not prepared in that case, to conceive the scope of a right to life as preventing the Secretary of State from sharing information about a foreign citizen with a foreign state that operated the death penalty. See, critique by Thomas Fairclough, ‘Common Law Constitutional Rights: One Step Forward, Two Steps Back?’ (2020) 79 CLJ 204).

M.C. Mehta v Union of India (Writ Petition Nos 158128/2019 and 158129/2019); Subhash Kumar v State of Bihar (1991) AIR SC 420; Virender Gaur v State of Haryana (1995) 2 SCC 577. See also, the cases referred to in Preston (n 37).

Jeremy Gans ‘Legality and Lenity’ in Dan Meagher and Matthew Groves (eds) The Principle of Legality in Australia and New Zealand (Federation Press 2017) 189.

Dan Meagher ‘The Principle of Legality and Proportionality in Australia Law’ in Dan Meagher and Matthew Groves (eds) The Principle of Legality in Australia and New Zealand (Federation Press 2017) 115; Wilberg (n 85) 386.

Wilberg (n 60) 70.

Meagher (n 132).

ibid 136, and Meagher (n 84) 462; c.f., Hanna Wilberg ‘Common Law Rights have Justified Limits: Refining the “Principle of Legality”’ in Dan Meagher and Matthew Groves (eds) The Principle of Legality in Australia and New Zealand (Federation Press 2017) 145, making the normative argument for a proportionality test and suggesting that the leading UK case, Simms , tacitly includes a justification test, albeit she concedes that a justified limits test is not applied in all cases, ‘express support for it is found only occasionally’, and there is also variance across jurisdictions.

R (Unison) v Lord Chancellor [2017] UKSC 51 [99–102] (Lord Reed).

R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 [5] (Lord Bingham).

Varuhas (n 81) 590.

Meagher (n 84) 469.

For one relevant analysis, see Warath Coal (n 44) [1410–1513].

Joseph (n 80) 34–35.

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Make a healthy climate a legal right that extends to future generations

We can help solve climate change with a new legal framework, says larissa parker, a law student at mcgill university.

This is the winning essay of The Economist ’s Open Future Essay Competition 2019 on the question “What fundamental economic and political change, if any, is needed for an effective response to climate change?” The winner is Larissa Parker, a law student at McGill University in Montreal. The jury selected the essay from 2,400 entries by people aged 16-25. More information about the competition and finalists is here . Excerpts from other essays are here .

IN MARCH 2019 I joined over 100,000 young people to strike in the streets of Montreal. We claimed the downtown area for hours, demanding increased climate action from our decision-makers. Children of all ages attended, marching for their right to grow up in a healthy world.

In the last decade the not-in-my-backyard phenomenon has turned into a not-in-my-lifetime one. After attending the United Nations climate conferences as a youth delegate for years, I have watched governments around the world put short-term economic gain before the long-term well-being of the planet and my generation. Although 195 nations committed to rapidly reduce greenhouse-gas emissions to keep the global average temperature well below 2°C relative to pre-industrial levels, many countries are nowhere near achieving their targets. In Canada, for example, current policy decisions have resulted not only in no reductions, but an increase in greenhouse-gas emissions. The latest national inventory report indicated that emissions rose by 8m tonnes from 2016 to 2017, an increase of about 1%.

This accountability problem is rampant across the world, yet few legal systems are equipped to address it. Although climate litigation is becoming a new front for climate action, with hundreds of cases arising around the world, they are limited in scope. Today, for the most part, only current generations have legal standing to sue; and to do so, they have to prove the impacts that they have experienced or are experiencing. This is problematic in the context of climate change because the effects of greenhouse-gas emissions take decades to manifest themselves. This renders it incredibly difficult to contest today’s polluting activities as their impacts have not been felt yet. It is also why governments feel little pressure to meet their commitments or take strong action.

I came to law school with high hopes of changing this. One solution is to recognise the rights of future generations to a healthy environment, which would open the door for lawsuits on climate inaction and keep governments accountable to their commitments under international law. If a government does not take sufficient action on climate change now, then it is not doing enough to prevent harm to future generations, thus violating their rights to a healthy environment.

The problem arises from the legal standing of future generations—or lack thereof, for they are generally not currently considered identifiable individuals under the law. Although it is easy to grasp their fundamental interest in a healthy environment, the law is reluctant to grant them recognition. This is because most of those individuals have not been born yet. How or when they will experience the impacts of climate change remains undetermined. Nevertheless, they represent our children, grandchildren and great-grandchildren. It is conceivable that, at the very least, we have a duty to ensure they inherit the planet in a condition that is comparable to ours.

This type of thinking has already led a handful of legal systems to begin recognising such rights, at least in limited form. Most famously, in Oposa v Factoran, the Supreme Court of the Philippines accepted that a class action could be filed on behalf of future generations to denounce logging licences. Notably, the court also affirmed that natural resources are held in trust for the benefit of present and future generations, and that the government was consequently required to protect them. A similar case was introduced in Pakistan in 2015, where a seven-year-old girl, represented by her father, filed a petition against the state for violating the constitutional rights of today’s youth and future generations because of its failure to combat climate change. In 2016 Pakistan’s Supreme Court allowed the case to proceed. It is still pending. Several cases against governments in the United States, Canada and Britain are also in progress.

Although it has limitations and is often slow, the ability of the law to modify and enforce norms, values and behaviour is significant. Through legislative and administrative developments, as well as through judicial reinterpretations of constitutions, statutes or precedents, law has the power to articulate the course for social transformation. Take Edwards v Canada (AG)—a famous Canadian case which ruled in 1928 that women were eligible to sit in Canada’s Senate. At the time, women were not yet considered “persons” as far as the constitution was concerned. The decision redrew the boundary around who could be considered a ‘person’ under the law and ensured that women would no longer be denied rights based on its narrow interpretation.

There are advantages that come from granting rights and legal standing. For all their shortcomings, legal rulings are often seen as legitimate, authoritative and enforceable because of the independence of the judiciary. And legal decisions tend to set precedent for years to come.

Of course, the law does not do this on its own. It usually occurs in response to a shift in a society’s values. To me, this shift is increasingly evident in the climate movement. A rising number of youth around the world are coming together to urge their governments to take stronger action to combat climate change and avoid its catastrophic effects. They are engaging in civil disobedience, such as school strikes, and have initiated lawsuits to stop various polluting activities or to demand stronger policy responses.

I hope that before long judges and decision-makers heed these voices; they are only getting louder. The slow-onset nature of climate change, and the difficulties of establishing accountability from one generation to the next, make it necessary to develop and adopt new legal principles that articulate the rights and obligations underpinning intergenerational equity. Formal recognition of the rights of future generations would expand the scope of climate litigation and allow present-day litigants to sue on their behalf. Although it is simply one path of many that will be required to achieve climate justice, enshrining the rights of future generations to a healthy Earth could have lasting impacts on judicial and policy decisions for decades to come.

___________

Larissa Parker, 25, is a second-year law student at McGill University. She holds an MSc in Environmental Governance from the University of Oxford and a BA from the University of Toronto. She is a research associate at the McGill Law, Governance and Society Lab and works with the Youth Climate Lab. She is involved in grassroots activism through Climate Justice Montreal.

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THE PRINCETON LEGAL JOURNAL

Princeton Legal Journal > The Forum

3 Prin.L.J.F. 23

Global Climate Change Litigation: A New Class of Litigation on the Rise

Diya Kraybill

Winter 2023

As climate change has come to the forefront of the public consciousness in recent years, we have seen increased global urgency and public awareness regarding this issue. This awareness has led to the advent of a new and ever-evolving body of environmental law related to mitigating climate change risks. 

According to the London School of Economics , “climate litigation is generally recognized to have started in the United States in the late 1980s but has since emerged as a growing global phenomenon.” Climate change litigation made headlines following the 2021 ruling by the Hague District Court in the case Milieudefensie v. Shell . This landmark ruling in environmental law held that Shell was required to both set and uphold emissions standards and reduction targets by 2030. Notably, the number of climate litigation cases filed has increased significantly following the signing of the 2016 Paris Agreement, with just over 800 cases filed between 1986 and 2014 and over 1,200 cases filed between 2014 and 2022. The Paris Agreement, while not legally binding, was a pivotal step forward because it was an attempt to “promote accountability and ambition” for all nations. 

With the growing number of climate change cases in recent years, precedents are set regularly, and cases are being brought against both corporations and governments. However, as we see a rise in cases, there are noticeable discrepancies in why these cases are brought forward and the bases upon which they are decided. While cases are brought with different forms of strategic intent, there are trends in the arguments being brought forward in the cases we have seen, making it possible to sort heterogeneous cases in the field of environmental law into various categories. 

Constitutional and human rights cases concern themselves with the constitutional and moral obligations that have failed to be upheld by a nation due to climate-change-related risks to citizens. According to the United Nations, “States have an affirmative obligation to take effective measures to prevent and redress these climate impacts, and therefore, to mitigate climate change, and to ensure that all human beings have the necessary capacity to adapt to the climate crisis.” If inadequate environmental conditions due to climate change compromise these rights, governments are liable to be sued. Under the rule of law, governments and citizens alike are accountable to laws that are “publicly promulgated, equally enforced and independently adjudicated” and are consistent with international human rights standards.

The challenge that arises is enforcing such liability under international law. In 2008, the UN Human Rights Council (UNHRC) issued a resolution that outlined the concern that climate change “poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights.” However, after conducting a later study of the relationship between human rights and climate change, they concluded that “it is less obvious whether, and to what extent, such effects can be qualified as human rights violations in a strict legal sense.” As such, these cases can be particularly challenging to bring forward, as many states will concede that climate change can interfere with the realization of human rights but reject the idea that failure to prevent climate change or take substantial action is a violation of international human rights law. The Paris Agreement is a legally binding international treaty; yet there is no formal accountability or consequence for nations failing to meet their individual goals. Instead, the Agreement focuses on transparency and ensuring that they are taking active measures to work towards their Nationally Determined Contributions (NDC). 

Administrative cases involve the review of “administrative decision-making by federal, state or local government, often concerning permitting and licensing approvals granted to high-emissions projects under environmental or planning laws.” An example of a case was ClientEarth v. Secretary of State , where ClientEarth, an environmental NGO, brought forward a case to the High Court challenging the UK government’s decision to approve what would become the largest gas plant in Europe. The court ruled in favor of the defendants, as the judge determined that the case “involved policy questions requiring a balancing of interests and that other public interests weigh against the UK’s climate goals.”   This case is illustrative of a key challenge that litigants bringing environmental claims face, as governments attempting to weigh different interests often conclude that climate change is not the most pressing issue, and can be compromised in favor of other more relevant or pressing issues. 

Private law cases involve disputes about negligence, nuisance, and public trust. For example, in Smith v. Fonterra Co-Operative Group Limited , the climate change spokesperson for the Iwi Chairs’ Forum, a Māori development platform, filed a case against seven New Zealand companies in the agriculture and energy sectors on the grounds of “public nuisance, negligence and breach of a duty to cease contributing to climate change.” However, this case, as with many other private law cases, was dismissed, as the court held that “tort law was not the appropriate vehicle for dealing with climate change” and that “every person in New Zealand — indeed, in the world — is (to varying degrees) both responsible for causing the relevant harm, and the victim of that harm.” Private cases have often been dismissed on the grounds that it is the responsibility of the government, rather than the court, to address climate change impacts and that it is difficult to prove that the harm the plaintiff incurred was directly attributable to the defendant’s actions.

Fraud and consumer protection cases are typically concerned with misrepresentation claims against corporations for failing to disclose the risk associated with their products or for “greenwashing” their products or practices. For example, Ramirez v. Exxon Mobil Corp . was a 2016 securities fraud class action suit alleging that Exxon failed to disclose climate risks, and this was also the first climate-change-related securities class action against a major oil and gas company. 

It is important to recognize that climate change litigation has had mixed success, particularly as this is such a new class of action with little precedent or comparable cases. Firstly, there is the question of justiciability and whether a court has the mandate to hear a claim about decisions on climate change. A notable example of this is in the case Lho’imggin et al. vs Her Majesty the Queen (2020) where two houses of the Canadian indigenous group filed a case against the Canadian government’s failure to meet their climate goals resulting in significant warming of their territories. The Federal Court of Canada responded by stating that “when the issue spans across various governments, involves issues of economics and foreign policy, trade, and a host of other issues, the courts must leave these decisions in the hands of others” and found that the case was not justiciable because the issue was inherently political rather than legal. Additionally, there is the challenge of establishing a causal link between the failure of a government to act in relation to climate change and the occurrence of subsequent negative climate developments. Litigants are, however, increasingly framing the case in terms of human rights and the state’s obligation to protect against the infringement of human rights due to climate change. 

As the scope of this new class of litigation continues to grow, it is imperative that companies are ready to respond to this changing regulatory landscape. While climate litigation is frequently met with challenges and is not always successful, the very existence of climate litigation is a powerful impetus for governments and corporate actors to uphold their social responsibility and pursue more sustainable environmental practices.

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News from the Columbia Climate School

The Status of Global Climate Change Legal Action: a New Report

Jennifer Danis and Romany Webb

Sabin Center for Climate Change Law

The report finds, as of July 1, 2020, at least 1,550 climate change cases have been filed in 38 countries around the world. Key trends in those cases include increasing numbers of matters premised on fundamental and human rights; challenging domestic enforcement and non-enforcement of climate-related laws; seeking to stop fossil fuel extraction and use; arguing for corporate liability for climate harms; addressing failures to adapt and the impacts of adaptation measures; and advocating for increased climate disclosures. The report provides a fresh analysis of the recurring legal issues that appear in most of these cases and discusses likely future directions for climate litigation in light of both accelerating climate impacts and the changing legal landscape.

The full report is  available  from UNEP. A previous report, from 2017, is available  here .

Adapted from a post on the Sabin Center Climate Law Blog.

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Climate Courage: Remaking Environmental Law

• May 14, 2022
• Cinnamon P. Carlarne
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We are living in the shadow of convergent crises. Social, racial, and economic inequality tears at the fabric of democracy. Global ecological crisis rips at the seams of social stability. Amidst these convergent crises, climate change looms. Climate change threatens to destabilize society and exacerbate existing patterns of inequality. However, it also creates opportunities to disrupt persistent patterns of exclusion and inequality as we pursue pathways for a just transition. Climate change compels us to rethink the role of environmental law in advancing transformative change. It invites us to consider how environmental law perpetuates inequality and how environmental law can operate more effectively to advance structural change. This Article advances that project.

Climate Courage highlights the existence of a swelling movement to advance environmental and climate law in ways that better align with other progressive law reform projects. It begins by disentangling the roots of U.S. environmental law to understand how the field emerged and evolved alongside but largely detached from other contemporary law reform movements before examining how the environmental justice movement and complementary projects are prompting a critical reassessment of environmental and climate law. The Article then identifies how intersecting crises are spawning a new generation of leaders who are unleashing more inclusive visions of life under and beyond the rule of law. Focusing on climate change, Climate Courage shows how these movements are creating opportunities to reimagine and remake environmental law.

“If we act now, together, united, to save those of us on the front lines, in the end it will also end up saving the rest of the world.” – Kathy Jetn̄il-Kijiner Iep Jāltok, Poems from a Marshallese Daughter (2018)

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1. root causes of climate change and climate injustices, 2. climate justice: distributional, procedural, and recognitional dimensions, 3. injustices of climate responses, 4. the pursuit of climate justice, questions for classroom discussions, acknowledgments, competing interests, climate justice in the global north : an introduction.

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Prakash Kashwan; Climate Justice in the Global North : An Introduction . Case Studies in the Environment 5 February 2021; 5 (1): 1125003. doi: https://doi.org/10.1525/cse.2021.1125003

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This essay provides a broad-based and jargon-free introduction to climate justice to foster critical thinking, engaged discussions, and profound reflections. It introduces the reader to three dimensions of justice—distributional, procedural, and recognitional justice—and shows how each relates to climate justice. A unique contribution of this essay is to identify and discuss the following three blind spots in the debates on climate justice: (1) the tendency to focus heavily on post hoc effects of climate change while ignoring the root causes of climate change that also contribute to injustices; (2) assuming incorrectly that all climate action contributes to climate justice, even though some types of climate responses can produce new climate injustices; and (3) although scholars have studied the causes of climate injustices extensively, the specific pathways to climate justice remain underdeveloped. This essay concludes by showcasing a few examples of the ongoing pursuits of climate justice, led by social justice groups, local governments, and some government agencies.

Climate change is an existential threat to human civilization. The increased frequency of climate-related disasters has been responsible for the loss of hundreds of thousands of lives in different parts of the world. 1 Yet climate change does not affect everyone equally; its consequences are distributed unequally between world regions, countries, and social groups within countries.

Countries that make up the Global North, or the “developed countries” (For a useful discussion of the vocabulary of developing versus developed countries, see https://www.npr.org/sections/goatsandsoda/2015/01/04/372684438/if-you-shouldnt-call-it-the-third-world-what-should-you-call-it .), have benefited significantly from the energy-intensive industrial development responsible for warming the earth’s atmosphere. However, the poorest countries pay a steep price, especially highly vulnerable small island nations (e.g., Kiribati, the Solomon Islands, Papa New Guinea, Haiti, and Guinea-Bissau) contributing the least to the climate crisis. Therefore, global policy experts often describe climate justice as an international issue.

The rapidly increasing emissions from China, India, and other middle-income countries cause concern, especially for the poor, who must bear the worst consequences of deteriorating land, water, and air quality. However, the climate crisis unfolding now is a result of the accumulation of greenhouse gases (GHGs) in the earth’s atmosphere since the Industrial Revolution, to which middle-income countries have contributed very little. According to one estimate, the United States alone has contributed nearly 35% of the total cumulative global CO 2 emissions since 1750. 2 Irrespective of where one stands on this debate, nationality and international borders are only two of several factors contributing to various types of climate injustices. Differences in income and wealth, race, gender, ethnicity, age, and sexual identities within countries also contribute significantly to climate injustices.

This essay’s primary goal is to introduce readers to climate justice questions within the Global North. Debating these questions in our backyard is vital because a focus on the poor people in the Global South detracts from a deeper understanding of inequalities and injustice at home. Equally important, a focus on the Global North allows for a better understanding of the root causes and the here-and-now nature of the currently unfolding climate crisis. The socially discriminatory effects of climate change are evident from the reportage of climate-related disasters in the United States and elsewhere, especially beginning with Hurricane Katrina [ 1 ]. Therefore, it is useful to think of climate justice as a framework to recognize and redress the unequal distribution of costs and burdens of climate change and climate responses of various types. Moreover, climate justice also requires ensuring that those affected most severely by climate change participate in brainstorming, developing, and implementing climate responses.

Attaining a substantive and deep understanding first requires recognizing three blind spots in climate justice discussions. One, even though the leading cause of climate change is related to energy-intensive lifestyles, most climate change discussions, including those on climate justice, often focus on the effects of climate change. A comprehensive explanation of climate justice requires avoiding such post hoc tendencies and centering our discussions on climate change’s root causes. Two, very often “radical” climate response is equated with climate justice, which does not hold in all circumstances. As the discussions below show, some radical climate responses may contribute to new kinds of injustices. Three, even though understanding the sources and the effects of climate injustices is necessary, such understanding does not translate easily into the specific actions needed to realize climate justice in practice. Accordingly, this essay concludes with a brief discussion of several ongoing pursuits of climate justice.

An in-depth inquiry into the historical trajectory of climate change and climate denialism of the past half century shows that the concentration of political and economic power has been a significant cause of the current climate crisis. The distribution of power influences how environmental amenities (e.g., clean air) and problems (e.g., pollution) are valued and distributed within national boundaries. The current economic system and the patterns of consumption it promotes are responsible for environmental degradation and environmental injustices [ 2 ]. For example, a select few multinational corporations control nearly all the global food business and consume 75% of the entire food sector’s energy requirements—but feed a much smaller proportion of the world’s population[ 3 ]. More broadly, the wealthiest 10% of the world’s population produces almost as much GHG emissions as the bottom 90% combined [ 4 ]. The extent of income inequalities within the United States and the UK shows that these inequalities are not merely due to the differences in national economic growth, which advocates of the free market often present as a solution to poverty and underdevelopment. For instance, income growth over the last few decades has lowered the well-being of large parts of the U.S. population while supporting profligate consumption among the wealthiest [ 5 ]. Such a lopsided distribution of economic growth benefits is responsible for increased precariousness among large sections of the Global North population, the climate crisis, and the myriad climate injustices.

One manifestation of the imbalances in political and economic power is corporate climate denialism, which powerful corporations engineered to protect the status quo’s benefits. Fossil fuel multinational corporations based in the United States have known since the early 1970s that the burning of fossil fuels caused global warming and climate change. The documents made public during the ongoing lawsuits against Exxon Mobil show that instead of acting on their knowledge of global warming, major fossil fuel corporations orchestrated a campaign of climate denialism [ 6 ]. These campaigns sowed seeds of doubt among the public and allowed the federal and state governments to continue supporting the fossil fuel industry’s expansion.

Data from the Washington-based Environmental and Energy Study Institute suggest that as of the year 2019, the U.S. government awarded approximately US$20 billion per year in direct subsidies to the fossil fuel industry. Eighty percent of these subsidies went to the natural gas and crude oil industries, while the coal industry received the remaining 20%. 3 Similarly, the European Union subsidizes the fossil fuel industry by an estimated 55 billion euros (or approximately US$65 billion) annually. These subsidies give fossil fuel corporations enormous power over governments in economically underdeveloped countries, such as Nigeria and Angola, where fossil fuel extraction occurs. Therefore, fossil fuel subsidies exacerbate international inequalities that date back to European colonization and continue to shape developmental disparities today [ 7 ].

The adverse environmental and public health impacts of fossil fuel subsidies cost the global community an estimated US$5.3 trillion in 2015 alone [ 8 ]. The costs of environmental toxicity burdens fall disproportionately on the poor and marginalized community groups who lack the political and economic power to hold the business and political actors to account. The situation is especially problematic in some of the poorest oil exporting countries, such as Angola and Nigeria. However, as the vast scholarship on environmental justice shows, the poor and racial minorities in the United States also suffer the worst consequences of environmental pollution from landfills, toxic waste dumps, and petrochemical facilities [ 9 ]. One particularly hard-hit area is a stretch of the Mississippi River between New Orleans and Baton Rouge, which hosts many highly polluting petrochemical facilities. Because of the pollution caused by the petrochemical industries, residents there have such high rates of cancer that the areas is known as the “Cancer Alley” [ 10 ]. Cancer Alley has been a focal point of the U.S. environmental justice movement for over three decades [ 11 ]. However, there has been no perceptible change in the extent of environmental injustices in the Cancer Alley and other Petrochemical hubs. These toxic hot spots create dangerous new hazards in the face of the calamities linked to the climate crisis.

Hurricane Laura made landfall in Louisiana in August 2020 with a wind speed of 150 mph, which made it the strongest Category 4 hurricane on record since 1856. A Yale University report suggested that climate change may explain the rapid intensification of Atlantic hurricanes, such as Laura, which caught the forecasters and the public off guard. 4 That results in even more severe impacts on the poor because they are least well prepared to confront these crises. These calamities are especially dangerous for communities living in areas such as Cancer Alley. Well into the second day after the deadly winds from Laura had died down, the residents of Mossville were grappling with the effects of toxic gases released from a fire that erupted during the storm in a chlorine plant owned by BioLab in Westlake, Louisiana. 5 Mossville constitutes an archetypical case of the confluence of environmental and climate injustices. Still, it is also a testimony to the deeply entrenched and ongoing effects of the history of slavery in the United States.

Mossville was founded in 1790 by formerly enslaved and free people of color, who sought refuge in a swamp to escape the oppression of segregation. They made it into a community that practiced agriculture, fishing, and hunting for generations. However, successive rounds of zoning decisions by White elected officials transformed Mossville into the “ground zero of the chemical industry boom.” 6 Industry owners forced most residents to sell off their properties. At the same time, those who stayed had no choice but to suffer the consequences of prolonged exposure to industrial pollution and toxic contamination. 7 Mossville’s struggles are not just a domestic issue either. The Lake Charles Chemical Complex responsible for devastating effects on the local environment and the health and well-being of Mossville residents is under the management of the South African Synthetic Oil Limited (SASOL). The apartheid-era South African government, hamstrung by international sanctions, established SASOL in 1950 to transform coal into fuel and chemicals using a technology developed by engineers in the Nazi-era Germany. 8 This environmentally degrading technology is no longer in use, but SASOL’s record of social and environmental impacts remains appalling.

The fossil fuel industry is also tightly coupled with the defense industry, which aids the U.S. foreign policy goal of controlling the supply of oil, rare minerals, other extractive industries, and strategic shipping lanes crucial for transportation. 9 It is common knowledge that the Bush administration’s desire to control oil supply was one of the primary motivations for the 1991 Gulf War against Iraq. The Department of Defense is the single largest consumer of energy in the United States and the world’s single largest institutional consumer of fossil fuels [ 12 ]. The so-called military-industrial complex 10 exists to influence political decisions to support state subsidies for the fossil fuel and petrochemical industries. In other words, political and administrative decisions, not some random mistakes or unavoidable trade-offs, are responsible for endangering the health of the planet and the lives of poor racial minorities in areas like Cancer Alley and communities like Mossville.

Tragically, the Black communities who suffer the most from these environmental injustices are also subject to myriad other injustices, such as the police brutalities that have catalyzed a global Black Lives Matter (BLM) movement. Social scientists Lindsey Dillon and Julie Sze argue that the phrase “I can’t breathe,” which became a rallying cry for the BLM, points to the environmental and social conditions through which “breath is constricted or denied” [ 13 ]. The military-industrial complex is responsible, in more than one ways, for producing the “embodied insecurity of Black lives” [ 13 ]. For example, a Department of Defense program called “1033” enables local police departments to purchase “surplus” war zone equipment, including the mine-resistant ambush-protected vehicles. 11 The Ferguson Police Department deployed some of this military-grade equipment on the streets of Ferguson to suppress public protests against the police shooting and killing of 18-year-old Michael Brown. 12 Investigations by the Public Accountability Initiative, a nonprofit corporate and government accountability research institute, show that police foundations that support local police departments are partially funded by fossil fuel corporations such as Chevron, Shell and Wells Fargo. Their report concluded: “Many powerful companies that drive environmental injustice are also backers of the same police departments that tyrannize the very communities these corporate actors pollute” [ 14 , 15 ].

These complex links between social, environmental, and climate injustices are reminders that it may not always be useful to consider social, environmental, and climate injustices in isolation from one another. 13

“Climate justice” is commonly thought of as the unfair distribution of costs and burdens of climate change. However, two other dimensions of justice spelled out by justice theorists are equally important: procedural and recognitional justice. This section explains each of these three dimensions and their relation to pursuits of climate justice.

2.1. Distributional Effects of Climate Change

Distributional justice focuses on a fair distribution of costs and burdens of climate change and the societal responses to climate change. Vulnerability to climate change is a result of a lack of protection against risks linked to natural events. If everyone in society were equally protected, the costs and burdens related to a disaster would not fall disproportionately on some social groups. However, individuals and groups, such as racial minorities, homeless people, people with disabilities, single moms, and poor people, are more vulnerable to the effects of disasters. These vulnerabilities are a result of policies and programs that push racial minorities and other socially marginalized groups into poverty and destitution. Exclusionary zoning laws and redlining policies during the New Deal era illustrate this point well. The term “redlining” referred to the practice of drawing red lines on urban planning maps to identify African American neighborhoods as being “too risky to insure mortgages.” 14 These maps informed the actions of the Federal Housing Administration, the Veterans Administration, and Home Owners Loan Corp., thereby depriving African American towns and neighborhoods of public investments. The members of minority communities could not buy properties in some areas because the administration “reserved” these neighborhoods for affluent White families [ 16 ].

This history of urban segregation and racially prejudiced urban and suburban developments is why inner-city neighborhoods lack basic civic amenities and infrastructure that middle-class neighborhoods take for granted. These historical legacies translate into increased vulnerabilities in the context of the climate crisis. For example, an estimated 400,000 New Yorkers who live in the New York City Housing Authority’s public housing developments bore the worst effects of Hurricane Sandy in October–November 2012. The floods that occurred because of Hurricane Sandy greatly exacerbated rampant mold problems in these projects, with far-reaching health impacts for residents with respiratory illnesses [ 14 ]. The quality and affordability of housing for minorities are also among the causes of “energy poverty” or high energy burden, which is the percentage of income a person or household spends on energy [ 17 , 18 ]. Energy poverty makes it difficult to cope with the impacts of storms and floods while also leaving the energy-poor families vulnerable to the shocks related to increased energy prices that could result from a transition to renewable energy.

The problem is equally or even more severe in the predominantly African American rural areas. For instance, a 2017 report in the American Journal of Tropical Medicine and Hygiene found that among 55 adults surveyed in Lowndes County, Alabama, 34.5% tested positive for hookworms. The presence of this intestinal parasite is a sign of extreme poverty. Specifically, it results from an inadequate sewage system with cracked pipes of untreated waste that contaminate drinking water. In some places, this results in open pools of raw sewage, which flush human feces back into kitchen sinks and bathtubs during the rainy season [ 19 ]. Environmental and climate justice activist Catherine Flowers argues that the intensification of heavy rains and floods because of the ongoing climate crisis is overwhelming the broken sewer systems and undermining poor African Americans’ lives and livelihoods [ 20 ].

The distributive injustices of the economic system have become even more pronounced in the presence of large and increasing wealth and income inequalities. These distributional inequalities affect entire regions and local juridisctions, undermining their ability to provide civil amenities in the aftermath of a natural disaster and ensure human security. A stark reflection of these distributional consequences is that the poor and the marginalized experience the most devastating impacts of a climate disaster, that is, the loss of human lives.

2.2. Procedural Rights

Another important dimension of climate justice is procedural justice, which refers to whether and how the groups most affected by climate change have meaningful opportunities to participate in brainstorming, designing, and implementing climate responses. Historically, African Americans and other racial minorities have been under-represented in environmental and climate movements. The U.S. environmental justice movement has been calling attention to this issue for a quarter of a century, yet the problem of a lack of diversity persists. Research on 191 conservation and preservation organizations, 74 government environmental agencies, and 28 environmental grant-making foundations shows that racial minorities constitute 16% of staff and board members. Once recruited, members of minority communities tend to concentrate in lower ranks, trapped beneath a glass ceiling [ 21 ]. Although environmental institutions have made significant progress on gender diversity, such gains have mostly accrued to White women [ 21 ]. Such an under-representation in environmental movements leads to the exclusion of minorities from policy-making processes, which also creates the mistaken assumption that racial minorities are too poor to care about the environment or climate change. However, nationally representative surveys show that people of color, including Hispanics/Latinos, African Americans, and other non-White racial/ethnic groups, are more concerned than Whites about climate change [ 22 ]. Even so, higher levels of awareness are not sufficient to foster meaningful participation, which requires carefully designed processes that facilitate respectful engagement between members of marginalized groups and decision makers, such as city leaders [ 23 ].

The involvement of those affected most by climate change is essential for two key reasons. First, there are legal, statutory, political reasons for ensuring broad-based participation. Principle 10 of the Rio Declaration on Environment and Development sets out three fundamental access rights: access to information, access to public participation, and access to justice as key pillars of sound environmental governance [ 24 ]. Agenda 21 has subsequently been integrated into various national, provincial, and local statutes and continues to be a source of learning for the ongoing debates about just transition [ 25 ]. The access rights are also in conformity with recognizing political and civil rights as the essence of universal rights enshrined in the Universal Declaration of Human Rights. A second reason for ensuring local participation has to do with the substantive effects of an inclusive process. Those most affected by the climate crisis are also likely to contribute the most insightful ideas about how best to address the vulnerabilities that produce climate injustices in the first place. For example, the Office of Sustainability in the city of Providence, RI, partnered with the city’s Racial and Environmental Justice Committee to make sure that the city’s climate action plan adhered to the Just Providence Framework developed previously by the city residents and leaders. 15 This process turned out to be so successful that the city’s Climate Action Plan metamorphosed into a Climate Justice Plan. Additionally, the city’s Office of Sustainability adopted a system of governance that is based on collaborating actively and routinely with community-based organizations. 16

2.3. “Recognitional” Justice

The promises of procedural justice remain unfulfilled in many cases because people from all social groups are not always recognized as legitimate actors, whose understanding of a problem and whose interests and priorities should inform the design and implementation of policies and programs [ 26 ]. On the other hand, marginalized groups are subject to mis recognition, which Nancy Fraser refers to as an institutionalized pattern of cultural values that “constitutes some social actors as less than full members of society and prevents them from participating as peers” [ 27 ]. Thus, the twin concepts of recognition and misrecognition are related to patterns of “privilege and oppression,” which manifest in the form of “cultural domination, being rendered invisible, and routine stereotyping or maligning in public representations” [ 26 ]. In a very profound way, recognition and misrecognition are the foundational questions of climate justice with wide-ranging consequences. As David Schlosberg has argued, a lack of respect and recognition often leads to a decline in a person’s or a group’s “membership and participation in the greater community, including the political and institutional order” [ 28 ]. Therefore, a lack of recognition presents a formidable barrier against addressing procedural and distributional concerns.

The following example illustrates how questions of recognition manifest in climate policy contexts. Harvey, a category 4 hurricane, struck Houston in August 2017. Maria, a category 5 hurricane, struck Puerto Rico in September. A review of public records from the Federal Emergency Management Agency and interviews with more than 50 people involved with disaster response revealed that the Trump administration’s response was far more swift in Houston than Puerto Rico, which experienced far greater destruction [ 29 ]. Many Puerto Ricans believed that this was more evidence that the president viewed them as “second-class American citizens” [ 30 ]. On numerous occasions, President Trump criticized Puerto Rico for being a “mess” and its leaders as “crazed and incompetent,” which constitutes an instance of misrecognition [ 31 ]. The Governor of Puerto Rico Tweeted, “Mr. President, once again, we are not your adversaries, we are your citizens” [ 31 ]. The Governor of Puerto Rico felt that the Trump administration did not recognize their rights as U.S. citizens, which influenced how the federal government responded to the most devastating climate-related disaster to date in the United States. Such lack of recognition or misrecognition is not new; it did not start with the Trump administration. Even though Puerto Ricans are U.S. citizens, the national political process treats them as subordinates. They do not have voting representation in the U.S. Congress or the Presidential elections. Unfortunately, a more detailed analysis is beyond the scope of this essay. Still, other scholars show how the environmental and climate injustices experienced by the people of Puerto Rico result from a long history of colonialism, occupation of large parts of the island’s territory by the U.S. Navy, and the neoliberal policies imposed on the island [ 32 , 33 ].

African American citizens in the United States have had very similar experiences, even though the political process does not disadvantage them formally. The dominant narratives used in media and political discourse, which often describe African American men as aggressive, angry, and prone to criminal violence, reinforce longstanding prejudices against racial minorities. Such negative constructions of social identities lead some to perceive the presence of African American men in the wilderness, or even in parks, as suspicious or threatening. A May 2020 incident involving an African American birder in New York’s Central Park illustrates the point. The birder asked a White woman jogger to leash her dog, as the law required. However, instead of following the park rules, the woman called the cops on the birder. A video recorded by the birder and circulated widely on social media showed the woman repeatedly telling the cops on the phone that “there’s an African American man threatening my life” [ 34 ]. Afterward, several other African American birders and hikers shared similar racial profiling experiences on social media with hashtags like #BirdingWhileBlack and #HikingWhileBlack. A common theme evident in each of these experiences is that many White people in the United States do not perceive or recognize Black people as birders, nature photographers, or hikers [ 35 , 36 ].

Other social groups, such as indigenous people and Latinx, are also often subject to prejudices and profiling, which contribute to the negative construction of their identities and instances of misrecognition in society and politics [ 37 ]. As Nancy Fraser argues, misrecognition and negative stereotyping can contribute to the institutionalization of prejudiced norms within public policies and programs, for example, via the zoning and redlining practices that sacrifice the interests of negatively portrayed groups. Notwithstanding the racialized histories of urban development in the United States and elsewhere, some commentators argue that the considerations of social justice will muddle the efforts to decarbonize the economy “quickly and efficiently.” 17 This argument draws on the perspective that there are significant trade-offs between climate action and climate justice.

One relevant example is hydraulic fracturing, or fracking, which many see as a boon for providing abundant natural gas supplies crucial to the “transition” away from the dirty fuel of coal. They argue that the relatively more climate-friendly energy available from natural gas, coupled with economic benefits that local communities gain in the short term, must be weighed against the risks of adverse public health and environmental consequences. 18 Yet, laws that protect the privacy of proprietary data hinder public access to information about the health and ecological consequences of the chemical cocktails used in fracking, even though such information is vital to the goals of public health and environmental protections. Overall, a broader systems approach suggests a significantly more extensive set of adverse consequences, including the “impacts from the decline in water quality on soil, land, and ecosystem productivity (crops/animal health); effects of fracking-related air pollution on pollinators; effects on the development of local, alternative food systems; and, fracking-related boom-bust dynamics” [ 38 ]. The range of these negative consequences raise questions about the narratives of trade-offs in fracking .

Some proponents of a speedy transition to renewable energy also cite the supposed tradeoff between efficiency and equity to argue for allowing competent energy companies to develop, install, and own industrial-scale renewable energy grids. However, this view ignores the many benefits of wide-ranging consultations and collaborations with local communities that could enhance the public acceptance and efficacy of renewable energy infrastructure [ 39 ]. Somewhat ironically, some of the most challenging trade-offs may be witnessed in communities most vulnerable to climate change, for example, indigenous communities that seek to secure their “sovereignty by the barrel” because the compulsions borne out of marginality constrain their choices for economic development. 19 Such a “take it or leave it” scenario of limited choices reflects longstanding disadvantages, which the ongoing climate crisis is likely to exacerbate. Overall, it is crucial to investigate the arguments about potential trade-offs in a nuanced way so that some parties do not weaponize these arguments [ 40 ].

Climate response has three components: mitigation, which refers to actions that help reduce emissions of GHGs; adaptation, which refers to measures that reduce vulnerability to the consequences of climate change; and resilience, which refers to the properties that enable a socioecological system to withstand the shocks of climate change. Although adaptation and resilience are closely intertwined, adaptation actions are generally thought of as responses to climate change impacts, while resilience actions are anticipatory. Each of these three types of “climate responses” has important implications for justice. Additionally, we briefly consider the importance of taking an intersectional approach to understanding climate action’s justice effects.

A central component of the efforts to mitigate climate change is to curtail carbon emissions linked to energy-intensive consumption. However, in democratic societies, one cannot merely ban or arbitrarily restrict energy-intensive activities, not least because many of these activities are a source of employment and other means of economic wellbeing for many lower-income families. The next best option is to put a price on carbon emissions, commonly referred to as “carbon tax,” which many scholars and practitioners see as one of the most effective means of climate mitigation. If we lived in a world of economic and wealth equality, a carbon tax would simply realign economic incentives without imposing excessive burdens on specific social groups. However, in the presence of massive economic and wealth inequalities, a carbon tax would affect poor and/or racial minority households very differently compared to others. Unless subsistence items, such as food, water, and energy were protected from the inflationary effects of carbon taxes, even a moderate level of the carbon tax could make these items too expensive for the poor in the United States.

In Paris, the Yellow Vest protestors cited economic inequalities and the unfairness of the gas tax that President Emmanuel Macron announced in 2019 as one of the main reasons for the protests. The protestors felt that it was unfair to ask low- and middle-income folks to “make sacrifices while rich people aren’t paying taxes anymore.” This feeling of unfairness contributed to “a sense of despair, as well as a sense of social injustice” [ 41 ]. The adverse effects of climate mitigation are not always contained within the national borders, though.

Carbon offsets projects, including some that may be funded by environmentally conscious consumers paying an airline a little extra to offset the emissions linked to their air travel, have been implicated in the dispossession and displacements of indigenous groups in different parts of the world. 20 Such projects may be less problematic when implemented within the Global North, characterized by the security of property rights and a robust rule of law. These conditions do not apply to most terrestrial carbon offset projects in Africa or Asia. Over 95% of forestlands are legally defined as public lands, even though most of these lands have been used customarily by indigenous peoples and other rural populations. Under those conditions, the financial returns linked to carbon offset projects incentivize powerful government agencies and private actors to set aside these lands for carbon offset projects, including in countries where customary land tenures are protected under the statute. The international community has developed social safeguards and other codes of conduct to regulate offset projects. However, research by the Center for International Forestry Research, the Oakland Institute, and the Rights & Resources Initiative shows that international offset projects contribute to widespread human rights violations [ 42 , 43 ].

Similarly, a large-scale switch to renewables, including electric or hybrid batteries, windmills, and solar panels, could lead to a sudden spike in demand for rare minerals, such as copper and cobalt. The mining of these minerals also often contributes to gross human rights abuses, including child labor and the degradation and depletion of natural resources, such as water, forests, and pastures crucial for local livelihoods in the Global South [ 44 ]. For these reasons, some scholars argue that industrial-scale renewable energy infrastructure can be as exploitative as the fossil fuel industry practices have been. Noticeably, this argument applies to industrial-scale renewable infrastructure. Renewable energy resources can also exist in the form of “energy commons,” which give local communities real stakes in making decisions about siting, pricing, and profit-sharing [ 45 ]. Such democratization of energy infrastructure is crucial for implementing a transition plan that suits the site-specific requirements.

Some consider climate adaptation, that is, the measures designed to deal with the climate crisis, to be synonymous with climate justice. The argument is that if the worst consequences of climate change fall on the poor and the marginalized, any interventions meant to adapt to climate change would necessarily help the poor. Yet not all climate adaptation measures are created equal. For example, coastal adaptation measures in response to sea-level rise should help sustain rather than disrupt subsistence and artisanal fishing, which are the mainstay of livelihood strategies for many coastal frontline communities. More broadly, as Dean Hardy and colleagues argue, “the land facing inundation is racialized land…that has been appropriated, settled, cultivated, and distributed through a long history of deeply racialized projects” [ 46 ]. They argue that sea-level rise adaptation planning must recognize the reality of such “racial coastal formations” and must commit to “resist the reproduction of and reinvestments in racial inequality in responses to climate change” [ 46 ].

The failure to address racial inequalities means that many urban climate adaptation interventions, such as public transit systems, public parks, and improved civic amenities, may increase property prices or rentals, which makes some areas unaffordable to their current residents. These changes lead to urban gentrification, which refers to the changes in a neighborhood’s composition because of changes in property values. It is called climate gentrification when such changes are related to climate change [ 47 ]. The framework of climate gentrification helps illuminate the social determinants of vulnerability. For example, as the rising sea levels and frequent flooding threaten expensive properties on Miami’s famed beaches, wealthy people invest in properties inland. The flux of new investments and new wealthy residents makes the previously low-income neighborhoods too costly to afford for low-income groups [ 48 ]. As human geographer Jesse Ribot has argued, “vulnerability does not fall from the sky” [ 49 ]. Considering that socioeconomic deprivations contribute to climate change-related vulnerabilities, any efforts to address climate injustice must address such disadvantages.

The discussions above demonstrate that climate injustices are not just about the “climate system” or “global warming” but are rooted firmly in the unequal patterns of vulnerabilities shaped by the distribution of social and political power and economic inequalities. Climate change’s social consequences manifest in outcomes related to urban development patterns, energy prices, urban transportation, food production, and food markets. By implication, the pursuit of climate justice also requires addressing these various sectors of the economy and society. The following are some examples of how local governments, civic groups, academic institutions, and social movements seek to pursue climate justice.

The fossil-fuel divestment movement popularized by 350.org has grown to secure commitments to divest more than US$14 trillion worth of investments made by more than 1,230 institutions, including religious institutions, pension funds, university endowments, and large charitable foundations. College students from several universities in the United States, Europe, and elsewhere have made significant contributions to the global fossil fuel divestment movement’s ongoing success [ 50 ]. The decline of the fossil fuel industry, including the state-owned oil corporations in some of the largest oil producing countries, will undoubtedly lower environmental pollution and contribute to environmental and climate justice. Another example from the energy sector is the 2019 Tennessee Valley Energy Democracy Tour, which focused on building a collective grassroots vision for an egalitarian energy future in the communities impacted by the New Deal era projects of the Tennessee Valley Authority. 21 This tour served as a good reminder of why we need to pay attention to the historical legacies of unequal development and socioeconomic marginalization. Transformative reforms in state-level energy policies and programs are other crucial elements necessary for fostering an inclusive clean energy action. The Washington-based Institute for Local Self-Reliance scores and ranks states on their energy policies, specifically their devolution and inclusiveness [ 51 ]. Such rankings create useful resources for grassroots actors and could help foster healthy competition among states.

Climate justice interventions related to urban areas include the Miami City Commission’s resolution directing the city managers to research urban gentrification and ways of stabilizing property tax rates in lower income areas located further inland [ 52 ]. City governments can act to institutionalize other means of fostering a healthy urban ecosystem. In 2019, the Boston City Council voted unanimously to enact a Good Food Purchasing Program (GFPP) for a more equitable food purchasing system at public institutions. Seven other cities, including Los Angeles, Chicago, and Cincinnati, have also adopted GFPP policies [ 53 ]. These initiatives help urban populations cut down on their reliance on imported food items that leave a significant carbon footprint. In doing so, they also undercut the stronghold of industrial agriculture, which is a large consumer of fossil fuels and one of the major causes of global climate change [ 54 ]. Equally important, food ordinances can help improve the profitability of urban and peri-urban agro-ecological farming, which is associated with multiple social, economic, environmental, and climate-related benefits [ 55 ]. More broadly, instead of privatizing urban infrastructure or having monopolistic state control, reimagining the city as a “commons” gives urban residents a collective stake in a city’s resources [ 56 ]. Democratizing urban governance—that is, allowing urban residents a meaningful say in the conduct of the ongoing affairs in a city—is an important prerequisite for incorporating concerns of ecology and environment into our urban imaginations.

La Via Campesina , a transnational social movement, promotes agroecology and food sovereignty by engaging with all relevant actors, including the United Nations at the global level and peasant federations at the subnational level. They have been instrumental in the successful enactment of the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas. La Via Campesina engages with 182 organizations representing an estimated 200 million farmers from 81 countries throughout Africa, Asia, Europe, and the Americas. Another example of a grassroots network that has made a global impact is the Indigenous Environmental Network (IEN), founded in 1990 in Bemidji, MN, to address environmental and economic justice issues. IEN has also been one of the key actors in the global climate justice movement, mainly via its participation in the annual United Nations Climate Change meetings. The IEN has recently launched a People’s Orientation to a Regenerative Economy: Protect, Repair, Invest and Transform to put indigenous sovereignty and values at the front and center of collective efforts toward a sustainable future [ 57 ].

These are some examples of interventions from various actors and agencies invested in the pursuits of climate justice. Each of the examples cited above addresses a specific policy and programmatic area relevant to the daily lives of the people at the frontlines of climate change. However, the energy-intensive luxury consumption in the Global North and in some sections of the Global South that contribute significantly to the climate crisis does not receive adequate attention from policy makers. Our collective efforts to address climate change are unlikely to succeed if we fail to reduce consumption, especially the consumption of goods and services linked to “luxury emissions,” such as privately owned planes. The average carbon footprint of the wealthiest 1% of people globally could be 175 times that of the poorest 10% [ 58 ]. On the other hand, large sections of populations in the global South are still grappling with the provision of necessities such as nutritious food, safe drinking water, and a reliable supply of clean energy. Hundreds of millions also lack access to amenities such as sanitation systems, schools, and hospitals, as reflected in the United Nations 2030 Agenda for Sustainable Development. The emissions related to these activities are called “survival emissions” [ 59 ]. Some climate policy discussions tend to obfuscate these distinctions using the language of “human footprint” and “population problem” [ 60 ]. Such framings create a false equivalence between luxury consumption and survival emissions, while accounting for these distinctions provides policy guidance for climate policies that can be both just and efficient.

As the discussion on fossil fuel subsidies demonstrates, the patterns of consumption and deprivation are products of political and economic structures. National policies and the actions of powerful state and non-state corporate actors have severe consequences for what happens at the local level. Any high-level reforms would not necessarily translate into a realization of climate justice without social and political mobilization at the grassroots level. For over three decades, environmental and social justice movements have struggled to bring these issues to the public agenda both in the United States and globally. Advocates of climate justice would benefit from building on the insights and lessons from these movements [ 61 ]. Additionally, transformative reforms in the economy and society, executed via the federal or state-level agencies, are also equally important. We must seek to address the limits of liberal state, which are responsible for the entrenchment of racial capitalism and the climate crisis [ 62 ]. Climate justice calls for wide-ranging reforms and concerted actions in the cultural, social, economic, and political spheres.

What separates climate action advocacy from climate justice advocacy?

Is it too much to expect climate justice advocates to also address questions of social injustices of race, gender, and sexual identity, among others?

In your assessment, are links between the military-industrial complex, the Black Lives Matter movement, and the outcomes of environmental and climate justice that this essay suggest a bit “over the top”? Why or why not?

Do the simultaneous pursuits of climate response and climate justice necessarily entail trade-offs? What factors must be considered in assessing the extent of a trade-off in any given situation?

How does the consideration of a plurality of values to define human well-being affect our assessment of trade-offs in climate action/climate justice debates?

How could we reorient our food systems to promote socially just climate responses?

What role can municipal governments play in promoting climate justice?

Are the arguments about “city as a commons” or “energy commons” part of utopian thinking that cannot be translated into pragmatic policy reforms?

What roles do consumers and citizens play in advancing the goals of climate justice?

Could you think of examples of policies and programs not discussed above that might also contribute to climate justice? For each example, please explain the specific contribution to climate justice.

The author acknowledges the generous and insightful comments by Sikina Jinnah on the first two drafts and comments by Betty Hanson on the penultimate draft. The original impetus for this pedagogical note came from a new course I developed at the University of Connecticut, Storrs. I am thankful to the students who took the class in spring 2019, who engaged vigorously with the note and contributed to its expansion to its present form.

The author has declared that no competing interests exist.

The author received no financial support for the research, authorship, and/or publication of this article.

An additional 250,000 deaths a year are attributed to climate change, though that number continues to be contested by others who argue that the global death toll related to the ongoing climate crisis is likely to be much higher. https://www.cnn.com/2019/01/16/health/climate-change-health-emergency-study/index.html .

https://www.vox.com/energy-and-environment/2019/4/24/18512804/climate-change-united-states-china-emissions .

https://www.eesi.org/papers/view/fact-sheet-fossil-fuel-subsidies-a-closer-look-at-tax-breaks-and-societal-costs .

https://yaleclimateconnections.org/2020/08/climate-change-is-causing-more-rapid-intensification-of-atlantic-hurricanes/ .

https://www.washingtonpost.com/climate-environment/2020/08/28/hurricane-laura-chemicals-pollution/ .

https://www.sierraclub.org/change/2016/09/climate-justice-and-climate-apartheid .

The author owes the knowledge of these international connections to the screening of the documentary Mossville: When Great Trees Fall as part of Scalawag’s “Breathing While Black” virtual event on June 25, 2020. See https://www.scalawagmagazine.org/about/ ; and http://www.mossvilleproject.com/ .

https://slate.com/business/2006/10/the-nazi-germany-apartheid-south-africa-invention-that-could-make-oil-obsolete.html .

https://www.commondreams.org/views/2019/09/26/10-ways-climate-crisis-and-militarism-are-intertwined .

https://www.britannica.com/topic/military-industrial-complex .

https://www.usatoday.com/story/opinion/2014/08/13/ferguson-police-michael-brown-militarization-column/14006383/ .

https://www.theatlantic.com/national/archive/2014/08/the-pentagon-gave-the-ferguson-police-department-military-grade-weapons/376033/ .

https://mn350.org/2020/06/black-lives-matter-there-is-no-climate-justice-without-racial-justice/ .

https://www.npr.org/2017/05/03/526655831/a-forgotten-history-of-how-the-u-s-government-segregated-america .

https://grist.org/article/providence-shows-other-cities-how-environmental-justice-is-done/ .

Anon. 2019. The City of Providence’s Climate Justice Plan.

https://www.washingtonpost.com/opinions/want-a-green-new-deal-heres-a-better-one/2019/02/24/2d7e491c-36d2-11e9-af5b-b51b7ff322e9_story.html .

https://www.aeaweb.org/research/fracking-shale-local-impact-net .

https://indiancountrytoday.com/archive/sovereignty-by-the-barrel-tribe-takes-control-of-oil-production-4F796kUAo0S2GrEx3TfGbw .

https://redd-monitor.org/2016/10/19/five-responses-to-the-aviation-industrys-carbon-offsetting-scam/ .

The tour was co-organized by Appalachian Voices, Science for the People, Statewide Organizing for Community eMpowerment (SOCM), Working Films, and a group of community members and organizers in the greater Knoxville area. http://appvoices.org/2019/11/26/re-envisioning-public-power-in-the-tennessee-valley/ .

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Climate change and sustainability disputes: The international legal framework

Global |  Publication |  July 2021

Diving into the alphabet soup

Important developments in the 1990s, the 2000s (pre-paris agreement), 2015 paris agreement, multilateral and regional environmental legal instruments, other international legal regimes potential relevant to climate change, impact of the international legal framework.

This article provides an introduction to the current international legal framework addressing climate change and tracks key stages in the framework’s development over the past 60 years.

The starting point was with the United Nations General Assembly ( UNGA ) passing of Resolution 1721(XVI) in 1961, which created various organizations with mandates to advance scientific knowledge on the physical causes of climate and significant weather alteration. In 1972, the UN Conference on the Human Environment in Stockholm, Sweden marked the first international environmental conference and resulted in the created the United Nations Environmental Programme ( UNEP ). The next decade saw the First World Climate Conference declaration identifying climate change as an urgent challenge, the creation of the World Climate Programme and, in 1979, the Convention on Long-Range and Transboundary Air Pollution ( CLRTAP ) becoming the first internationally legally binding instrument on climate. This was followed by United Nations Convention on the Law of the Sea ( UNCLOS ) in 1982. 

In 1985 and 1987, the Vienna Convention for the Protection of the Ozone Layer and its related protocol (the Montreal Protocol ) were adopted and opened for signature. In 1988, the Intergovernmental Panel on Climate Change ( IPCC ) was created. With 195 member states currently, the IPCC is the primary international authority on the state of scientific, technical and socioeconomic knowledge on climate change. Its reports are relied upon in formulating climate change policy, laws, and legal decisions. 

From the late 1980s to early 1990s there were several other UNGA resolutions, international declarations, and statements which recognized a central theme of global communal responsibility in addressing climate change and acknowledged that human-induced greenhouse gas emissions ( GHGs ) are the primary cause of climate change. The Rio Summit in 1992 further established two additional legally binding conventions: the United Nations Framework Convention on Climate Change ( UNFCCC ), which entered into force in 1994 and is discussed below, and the Convention on Biological Diversity, which entered into force in 1993.

United Nations Framework Convention on Climate Change

The UNFCCC currently has near-universal membership globally with 197 Parties. It has the overall goal of preventing “dangerous” human-induced (or ‘anthropogenic’) interference with the climate system in order to enable economic development without risking irreversible damage to the ecosystem and human health. It contains broad language that encourages a level of judgment and discretion based on evolving scientific, technical, and economic factors and knowledge. It was introduced to fill a gap by addressing all GHGs not covered by the Montreal Protocol. 

The UNFCCC’s guiding principles are articulated in the preamble. Under international law, preambles are treated as an interpretive tool and are not binding. The UNFCCC accordingly codifies five distinct principles in Article 3, making them legally binding for Parties to use as guiding principles for their domestic implementation of the UNFCCC. For example, Article 3(3) articulates the ‘precautionary principle’, which states that notwithstanding scientific uncertainty about certain aspects of climate change, threats of irreversible damage to humans and the ecosystem should prevail as a priority. 

Article 4 includes general and specific commitments that Parties must take into account. UNFCCC membership is categorized into separate Annexes, which places different obligations on industrialized and developing countries in recognition that industrialized countries are the primary source of GHG emissions and therefore should take more substantial measures to reduce their emissions. The general commitments that apply to all Parties include the obligation to keep track of their GHG emissions, implement an array of programs targeting climate change mitigation, and report on UNFCCC implementation measures taken. The reporting obligation is reviewed annually at the UNFCCC Conference of the Parties ( COP ); the authoritative decision-making body that negotiates new commitments based on the UNFCCC Parties’ reports and evolving knowledge on climate change. 

1997 Kyoto Protocol

The Kyoto Protocol to the UNFCCC was adopted in 1997 to introduce more robust legally binding GHG emission reduction targets and timelines, which were absent from the UNFCCC. The Kyoto Protocol entered into force in 2005 and currently has 192 Parties. 

The Kyoto Protocol’s general commitments for all Parties mirror those of the UNFCCC. But in alignment with the UNFCCC’s approach, specific commitments and targets apply to different Parties depending on categorization, with a view to encouraging Parties to develop national actions, policies, and measures, and to influence international market mechanisms. Developing country Parties, including some major emitters, do not have binding reduction targets under the protocol. 

In 2010, the 16 th COP took place and resulted in the Cancun Agreements, one of which directly impacted the Kyoto Protocol by clarifying and confirming targets and mechanisms in the protocol, and raising standards for industrialized countries’ targets. In 2012, the Doha Amendment to the Kyoto Protocol introduced new GHG emission reduction targets for a particular Party category, revisited timelines for commitment periods, and introduced a new chemical to the list of GHGs covered under the protocol. With these amendments, developing country Parties still do not have binding reduction targets.  

The 2015 Paris Agreement falls within the UNFCCC framework and was negotiated during the 21 st COP in Paris. It is the latest legally binding international treaty on climate change and came into force in 2016. It is viewed as a landmark treaty due to its ambitious goals and wide scope. 

The overarching objective of the Paris Agreement is to limit global warming to under 2°C but ideally 1 to 1.5°C, above preindustrial temperatures. 

The Paris Agreement is organized to respect state sovereignty with a bottom-up structure of nationally determined contributions ( NDCs ), which allows Parties to communicate actions taken to reduce their own GHG emissions. To enforce accountability however, there are also structures in place including: a transparency system, which contains certain information sharing obligations under Articles 4 and 13; a global stocktake process, which begins in 2023 and involves collective progress tracking and assessment every five years under Article 14; and a compliance mechanism, which designates a committee to facilitate implementation and promotion of compliance under Article 15.  

To settle disputes that may arise from Parties over the interpretation or application of the Paris Agreement, the UNFCCC dispute settlement provision applies. The UNFCCC provides the option for Parties to declare that they recognize prescribed arbitration procedures, to be adopted by the COP, as compulsory. These procedures have not yet been agreed upon and to date, only four Parties have made this optional declaration. 

The language used throughout the Paris Agreement ranges from mandatory to more discretionary. For provisions pertaining to transparency and climate change mitigation, mandatory language is used (e.g., ‘shall’), which removes discretion from Parties. On the other hand, the language surrounding climate change adaptation measures is more permissive (e.g., ‘should’, ‘as appropriate’) and reads as recommendations instead. 

The Paris Agreement is the first international environmental treaty that explicitly recognizes the link between climate change and human rights and, although non-binding, the preamble indicates that Parties should consider impacted human rights such as the right to life, right to health, and rights of particular vulnerable groups of people, such as Indigenous peoples, persons with disabilities, migrants, and children. 

Paris Agreement Impacts

While implementation and the full potential and impacts of the Paris Agreement are yet to be seen, it has proven to be an increasingly-cited and persuasive piece of the international legal framework in climate change disputes, both against states and corporations. On the ground, many individual Parties have taken on their Paris Agreement obligations with more gravity, noticeably with the introduction and development of low-carbon alternatives in the power and transportation sectors. 

The UNFCC’s 26 th COP was delayed by a year from November 2020 to November 2021 as a result of the COVID-19 pandemic. This meeting was intended to resolve many aspects of the Paris Agreement’s implementation, including agreeing upon the aforementioned arbitration procedures to increase enforceability, carbon trading mechanisms and reporting time frames under the agreement. 

There are several legally binding multilateral environmental instruments in addition to the international legal framework discussed above. The multilateral instruments target specific areas of environmental concern that impact, or are impacted by, climate change. 

These include wetland management, pollution from maritime shipping, air pollution, hazardous waste disposal, and biodiversity conservation. Regional instruments are in place and have been ratified in South Asia, Southeast Asia, and the Pacific. Several soft law instruments such as declarations have similarly been introduced multilaterally and regionally.

Human Rights instruments

International human rights law is being increasingly applied, in both the legal and policy context, in tandem with international climate change legal instruments. The argument made is that the impacts of climate change impact human health and wellbeing and are therefore also a matter of human rights (and other fundamental rights). Commentators tracking climate change disputes have been predicting (accurately) that there will be an increase in claims that are essential climate change related but formulated as human rights or other fundamental rights arguments. 

At the forefront of international human rights law are the International Covenant on Civil and Political Rights ( ICCPR ) and the International Covenant on Economic, Social and Cultural Rights ( ICESCR ). Increasingly, commentators and activists are arguing that the many of the basic human rights legally binding international treaties are violated by climate change’s impacts, including the right to life, right to equality, right to an adequate standard of living, and the right to the highest attainable standard of physical and mental health. 

For example, eight Torres Straight islanders submitted a complaint to the UN Human Rights Committee ( UNHRC ) against Australia, alleging that Australia’s failure to address climate change is a violation of their rights under the ICCPR. If successful, it would be the first international decision to hold that states have a duty to reduce emissions under human rights law. The UNHRC also held in a climate change refugee judgment that governments, under their international law obligations (e.g., the ICCPR), cannot return individuals to their country of origin where human rights, such as the right to life, would be at risk. UNHRC decisions are non-binding but are seen to exert political pressure on states seeking to demonstrate compliance with their international legal obligations. 

There are further, more specific international human rights instruments that have obtained significant ratification by countries around the world. These are: the Convention Relating to the Status of Refugees, the Convention on the Elimination of All Forms of Discrimination against Women, and the United Nations Convention on the Rights of the Child ( UNCRC ). Famously, 16 children, including Greta Thunberg, filed a landmark complaint to the United Nations Committee on the Rights of the Child alleging that UNCRC Member States’ failure to tackle the climate crisis constitutes a violation of child rights. 

Corporate Accountability instruments

In addition to human rights instruments, there are international corporate accountability instruments that are potentially relevant to climate change. While these instruments are not explicitly or exclusively designed to enforce climate change mitigation and adaptation measures against corporations, commentators and activists have argued that many of their mandates and provisions could relate to climate change. 

Though non-binding in nature, the following two instruments in particular have been used as avenues through which stakeholders such as civil society organizations have sought to hold corporations accountable for their contributions to climate change or environmental damage. The first is the United Nations Guiding Principles on Business and Human Rights ( UNGPs ). These were cited by the by the Philippines’ Commission on Human Rights as conferring obligations on corporations to respect human rights when it announced, at COP 25 in 2019, its determination following a three year investigation that the 47 of the world’s largest fossil fuel companies, could be held legally liable for their contributions to climate change. 2   

The second is the OECD Guidelines for Multinational Enterprises ( OECD MNE Guidelines ), which are implemented through National Contact Point ( NCP ) offices. The NCPs are set up to hear complaints about companies that are allegedly in violation of the guidelines, facilitate discussion and mediation, and to provide recommendations to encourage compliance. Many complaints to countries’ NCPs in recent years, particularly in Europe, have been founded upon corporations’ impacts on climate change. 

The UN Human Rights Council is currently developing an international binding treaty for business and human rights, which if implemented would be legally enforceable upon the activities of transnational corporations and other business enterprises. The treaty aims to achieve the goal of global mandatory human rights due diligence, something that has gained traction locally and regionally, especially in Europe. 3     

In 2021, in a landmark move, the Council recognised, for the first time, that having a clean, healthy and sustainable environment is a human right. In resolution 48/13, the Council called on states to work together and with other partners, to implement this newly recognized right. At the same time, through a second resolution, the Council also increased its focus on the human rights impacts of climate change by establishing a Special Rapporteur dedicated specifically to that issue.

Across the world, the international legal framework surrounding climate change has had the effect of boosting global attention, driving political interest, and in some instances supplementing domestic legal and policy frameworks. Many governments are actioning their obligations under international law with more rigor as timelines for GHG emission reduction targets shorten. With international obligations being codified into national law, corporations operating under the jurisdiction of such governments are becoming subject to an increasingly stringent set of GHG emission standards and other statutorily mandated sustainability practices. Additionally, in recent years in climate change legal proceedings, both directed against states and corporations, the Paris Agreement, UNFCCC and human rights instruments are cited heavily in plaintiffs’ arguments and increasingly also referenced in court and tribunal decisions. Whether binding or not, these international instruments have had and will continue to have a significant impact on the legal and political landscape. 

*With thanks to Christine Yan, Vancouver, for her contribution to this article. 

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• > Journals
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• > Climate Change Litigation: Trends, Policy Implications...

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Climate change litigation: trends, policy implications and the way forward.

Published online by Cambridge University Press:  06 March 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, Footnote 1 the conclusion of the 2015 Paris Agreement, Footnote 2 and the publication in 2018 of the Intergovernmental Panel on Climate Change (IPCC) Special Report on Global Warming of 1.5°C Footnote 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. Footnote 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. Footnote 5 Legal scholarship on climate litigation covers a broad scope of issues, ranging from perspectives on a single case analysis Footnote 6 to regulatory aspects of climate litigation, Footnote 7 and covering one Footnote 8 or multiple Footnote 9 jurisdictions.

In the midst of the ever-increasing interest of legal scholars in the phenomenon of climate change, fuelled by the decision of the court of first instance in the Urgenda case in the Netherlands and awaiting the decision of the Hague Court of Appeal, Footnote 10 the International and Transnational Tendencies in Law Center (INTRAlaw) at Aarhus University (Denmark) convened a workshop entitled ‘Climate Change Litigation: Trends, Policy Implications and the Way Forward’. The workshop took place at the Aarhus University Department of Law on 14 and 15 June 2018. It gathered participants representing both academics and practitioners from around the world to reflect on the current state of climate litigation, its implications and future prospects. The participants of the workshop first discussed recent advancements in the area of climate litigation, such as the engagement of national courts with the Paris Agreement, the implications of climate litigation for business, and the emerging ‘human rights turn’. Footnote 11 The discussion subsequently addressed the intersections of law and policy not only within the environmental field but also in a broader context, such as that of international investment law. The workshop concluded with the prospects for future climate litigation, exploring possible new legal bases for future cases, such as financial regulation, international criminal law, and the law of restitution. The articles in this Symposium Collection were inspired by the various discussions at the workshop.

The Symposium Collection opens with two articles that engage with the interaction (and potential cross-fertilization) between international and domestic climate change law. The authors, however, take different points of departure. Lennart Wegener, in his article ‘Can the Paris Agreement Help Climate Change Litigation and Vice Versa?’, hypothesizes that the ‘dynamic interaction between domestic litigation and the Paris Agreement may improve the overall efficacy of both regimes’. Footnote 12 He unfolds the argument that the rather soft nature of the provisions of the Paris Agreement and its bottom-up architecture, on the one hand, and litigation before domestic courts, on the other hand, are mutually reinforcing. Domestic litigation may trigger internalization processes with regard to the norms and goals of the Paris Agreement and subsequently activate national action. In turn, the review of nationally set climate change policies as expressed in nationally determined contributions (NDCs) through domestic litigation may lead to effectuating the international regime by giving soft goals in NDCs a hard law edge. The author warns that the legal value of the Paris Agreement might be overshadowed by national law, namely constitutional and procedural law, which has a more direct impact on the outcomes of domestic litigation. Yet, Wegener underscores the significant and meaningful role of the Paris Agreement in coordinating global efforts to combat climate change and calls for closer attention to be paid to the ‘normative and functional interlinkages and interactions’ between the international and domestic level of climate change regulation.

The second article, ‘Domestic Courts and the Paris Agreement's Climate Goals: The Need for a Comparative Approach’ by Anna-Julia Saiger, Footnote 13 brings into focus the methodological challenges of studying the relationship between international and domestic climate change law. Saiger adopts a critical attitude towards legal scholarship on climate change litigation for rarely engaging in a methodological discussion. She highlights the need for a more traditional, yet nuanced, legal approach to the examination of the role of domestic courts in the creation and enforcement of international law. The author proposes a context-sensitive comparative approach as a possible avenue that is sensitive to national peculiarities and circumstances while permitting the comparison of cases from diverse jurisdictions. Such an approach allows for considering courts’ motivations and self-conception when delivering judgments on climate change-related issues in national contexts as well as taking into account the national institutional setting and power balance among various state powers and organs. Footnote 14 Saiger aspires to bring (and succeeds in bringing) attention back to the underlying legal analysis of the manoeuvring space of domestic courts in relation to international climate change law. Providing as an example the international obligations of conduct under the Paris Agreement, on the one hand, and the nationally set obligations of result, on the other hand, the author contends that the role of domestic courts in international law creation and enforcement is determined by their ability to link these two types of obligation. Saiger concludes that ‘climate change litigation may become an opportunity to (re)discuss the role of domestic courts in the international legal architecture’. Footnote 15

In her article, ‘Should Judges Make Climate Change Law?’, Footnote 16 Laura Burgers shifts the discussion from the interaction between international and national climate change law to the interplay between law and politics. She addresses the doctrine of the separation of powers in light of the growing trend of climate litigation. The question sought to be answered is whether the judiciary has the competence to adjudicate matters of high political sensitivity – in the case of climate change – or whether it acts ultra vires by doing so. Burgers thereby tackles the tension between law and politics as demonstrated in climate litigation. With a view to identifying the confines of legitimate judicial lawmaking in a constitutional democracy, she draws inspiration from the political theory on deliberative democracy of the German philosopher and sociologist Jürgen Habermas. Footnote 17 Based on this theory, Burgers argues that the law derives legitimacy from the societal discursive process among citizens in the public sphere on how law should be formulated (which is ultimately echoed by the democratically elected parliament and government). When adjudicating, courts in turn should follow suit and reflect in their judgments society's established beliefs. Footnote 18 The judiciary may make a decision that opposes democratic majorities only if such a deviation is founded on the protection of fundamental rights. As argued by Burgers, a legal transition most notably marked by the constitutionalization of the environment in various jurisdictions has been identified. Not only does such legal transition affirm that climate change has entered the legal (and constitutional) domain (as opposed to its perceived existence as a political matter alone), but it also constitutes one of the state's foundations. Footnote 19 Burgers concludes that climate change litigation reflects a ‘growing consensus’ that the environment is of constitutional value and, in turn, a prerequisite for democracy – and such qualification is the basis of the democratic legitimacy of judicial lawmaking on climate change.

In a rare contribution focusing on climate jurisprudence outside developed states, Joana Setzer and Lisa Benjamin map the initial trends of climate litigation in the Global South through a selection of cases. Footnote 20 Climate litigation in the Global South surprisingly has been overlooked by legal scholars notwithstanding its innovative and progressive features. Footnote 21 This article provides a missing piece of the global climate litigation puzzle, which hopefully will stimulate further academic insights with a different geographical focus. Setzer and Benjamin distinguish the attributes of climate litigation in the Global South as opposed to climate litigation in the Global North. Whereas the latter calls directly for the legislature to enact laws which adequately accommodate climate change-related considerations, the former employs a different adjudicative tactic, namely targeting ‘poor’ enforcement of existing legislative tools and adopting a human rights-based approach. The article puts forward that litigants in the Global South target existing legislation in their climate cases because arguably they are aware of the capacity constraints which the enactment of new climate change legislation might entail. Footnote 22 In addition, the human rights-based approach employed is to be attributed to the widespread inclusion of human rights protection in the constitutions of states of the Global South, the specific socio-economic and political context as well as the vulnerability of local populations in the Global South to the adverse effects of climate change. Footnote 23 Drawing upon Legal Opportunity Structures approaches, Setzer and Benjamin further seek to unravel the emerging trend of (often successful) climate litigation in the Global South notwithstanding the hurdles faced by litigants. According to them, this trend is owed to progressive procedural requirements on standing contained in constitutional and environmental legislation which permit access to justice by individuals. Footnote 24 Furthermore, the existence of constitutional provisions on environmental protection and robust domestic climate change litigation, coupled with progressive approaches to climate change adopted by the judiciary, contribute to the regulatory outcomes of climate litigation in the Global South. Footnote 25

The final article in this Symposium Collection, ‘Climate Litigation in Financial Markets: A Typology’, by Javier Solana, provides a first-of-its-kind review of climate litigation cases in financial markets. Footnote 26 To date, the number of climate litigation cases concerning financial markets has been surprisingly low considering the important role of financial markets in the pursuit of global sustainable development. Yet, recently the number has started to rise significantly. As the author points out, in 2018 more of such climate litigation cases were brought before the courts than in any previous year. Footnote 27 Solana reviews all identified climate litigation cases in financial markets and presents an original typology based on the claim underpinning each case. Footnote 28 Upon reviewing 46 cases, he distinguishes eight categories of claim, namely, claims based on fundamental rights, authority or mandate, decision-making processes, disclosure, breach of contract, breach of fiduciary duties, negligence, and public nuisance. The typology aims to advance the understanding of the relation between climate change and financial risks. Solana considers possible implications of climate change litigation in financial markets as well as multiple avenues for future research.

Delving deeper into the already richly researched topic of climate change litigation, the authors of the articles in this Symposium Collection deliver novel perspectives on the phenomenon, unveiling new areas of interest, both intellectual and geographical. Collectively, they exhibit the span of legal analysis and its contribution to the study of climate change litigation. The Symposium Collection identifies gaps in existing legal scholarship and underscores the need for further discussion of such key topics as the interplay between different levels of regulation, the doctrine of separation of powers, and social, environmental, and economic sustainability, including climate justice. We therefore invite further legal research into climate change litigation – a field which, as the contributors to this Symposium Collections demonstrate, is far from being fully comprehended and exhausted.

Symposium on ‘Climate Change Litigation: Trends, Policy Implications and the Way Forward’ held at the INTRAlaw Research Center, Department of Law, Aarhus University, Aarhus (Denmark), 14–15 June 2018

1 UN General Assembly, ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ (25 Sept. 2015), UN Doc. A/RES/70/1, available at: https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_RES_70_1_E.pdf .

2 Paris (France), 12 Dec. 2015, in force 4 Nov. 2016, available at: https://unfccc.int/sites/default/files/english_paris_agreement.pdf .

3 IPCC, Global Warming of 1.5°C: An IPCC Special Report on the Impacts of Global Warming of 1.5°C above Pre-industrial Levels and Related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty , Oct. 2018, available at: https://www.ipcc.ch/sr15 .

4 UN Environment Programme (UNEP) & Sabin Center for Climate Change Law, Columbia University, The Status of Climate Change Litigation: A Global Review (UNEP, 2017), available at: https://wedocs.unep.org/handle/20.500.11822/20767 ; M. Nachmany & J. Setzer, ‘Global Trends in Climate Change Legislation and Litigation: 2018 Snapshot’, LSE Policy Brief, 30 Apr. 2018, p. 2, available at: http://www.lse.ac.uk/GranthamInstitute/publication/global-trends-in-climate-change-legislation-and-litigation-2018-snapshot ; J. Setzer & R. Byrnes, ‘Global Trends in Climate Change Litigation: 2019 Snapshot’, Policy Report, Grantham Research Institute, 4 July 2019, available at: http://www.lse.ac.uk/GranthamInstitute/publication/global-trends-in-climate-change-litigation-2019-snapshot .

5 Vanhala , J. Setzer & L.C. , ‘ Climate Change Litigation: A Review of Research on Courts and Litigants in Climate Governance ’ ( 2019 ) 10 ( 3 ) Wiley Interdisciplinary Reviews: Climate Change e580 Google Scholar (mapping the social science scholarship on climate change litigation between 2000 and 2018).

6 E.g., Jans , K.J. de Graaf & J.H. , ‘ The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous Global Climate Change ’ ( 2015 ) 27 ( 3 ) Journal of Environmental Law , pp. 517 –27 Google Scholar .

7 E.g., Osofsky , J. Peel & H.M. , ‘ Climate Change Litigation's Regulatory Pathways: A Comparative Analysis of the United States and Australia ’ ( 2013 ) 35 ( 3 ) Law & Policy , pp. 150 –83 Google Scholar .

8 E.g., Hollaus , B. , ‘ Austrian Constitutional Court: Considering Climate Change as a Public Interest Is Arbitrary: Refusal of Third Runway Permit Annulled ’ ( 2017 ) 11 ( 3 ) Vienna Journal on International Constitutional Law , pp. 467 –77 Google Scholar .

9 E.g., de Vilchez Moragues , P. , ‘ Broadening the Scope: The Urgenda Case, the Oslo Principles and the Role of National Courts in Advancing Environmental Protection Concerning Climate Change ’ ( 2016 ) 20 The Spanish Yearbook of International Law , pp. 71 – 92 CrossRef Google Scholar .

10 Stichting Urgenda v. Government of the Netherlands (Ministry of Infrastructure and the Environment) , ECLI:NL:RBDHA:2015:7145, Rechtbank Den Haag [District Court of The Hague], C/09/456689/HA ZA 13-1396, available at: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196 ; and Stichting Urgenda v. Government of the Netherlands (Ministry of Infrastructure and the Environment) , ECLI:NL:GHDHA:2018:2591, Gerechtshof Den Haag [The Hague Court of Appeal], C/09/456689/HA ZA 13-1396, available at: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2018:2610 . See Zeben , J. van , ‘ Establishing a Governmental Duty of Care for Climate Change Mitigation: Will Urgenda Turn the Tide? ’ ( 2015 ) 4 ( 2 ) Transnational Environmental Law , pp. 339 –57 CrossRef Google Scholar ; and Mayer , B. , ‘ The State of the Netherlands v. Urgenda Foundation: Ruling of the Court of Appeal of The Hague (9 October 2018) ’ ( 2019 ) 8 ( 1 ) Transnational Environmental Law , pp. 167 –92 CrossRef Google Scholar .

11 Peel , J. & Osofsky , H.M. , ‘ A Rights Turn in Climate Change Litigation? ’ ( 2018 ) 7 ( 1 ) Transnational Environmental Law , pp. 37 – 67 CrossRef Google Scholar .

12 Wegener , L. , ‘ Can the Paris Agreement Help Climate Change Litigation and Vice Versa? ’ ( 2020 ) 9 ( 1 ) Transnational Environmental Law , pp. 17 – 36 Google Scholar .

13 Saiger , A.-J. , ‘ Domestic Courts and the Paris Agreement's Climate Goals: The Need for a Comparative Approach? ’ ( 2020 ) 9 ( 1 ) Transnational Environmental Law , pp. 37 – 54 Google Scholar .

14 Ibid ., p. 53.

15 Ibid ., p. 54.

16 L. Burgers, ‘Should Judges Make Climate Change Law?’ (2020) 9(1) Transnational Environmental Law , pp. 55–75.

17 Habermas , J. , Between Facts and Norms: Contributions to a Discourse Theory of Law and Democrac y ( Wiliam Reig tr , John Wiley & Sons , 2015 ) Google Scholar .

18 Burgers, n. 16 above, pp. 62–3.

19 Ibid ., pp. 67–71.

20 Benjamin , J. Setzer & L. , ‘ Climate Litigation in the Global South: Constraints and Innovations ’ ( 2020 ) 9 ( 1 ) Transnational Environmental Law , pp. 77 – 101 Google Scholar .

21 Setzer & Vanhala, n. 5 above.

22 Setzer & Benjamin, n. 20, pp. 85–6.

23 Ibid ., pp. 89–90.

24 Ibid ., pp. 94–5.

25 Ibid ., pp. 96–9.

26 J. Solana, ‘Climate Litigation in Financial Markets: A Typology’ (2020) 9(1) Transnational Environmental Law , pp. 103–35.

27 Ibid ., p. 105.

28 For methodological considerations see ibid. pp. 106–7.

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Research Areas for Climate Litigation

Delta Merner , Carly Phillips , Kathy Mulvey

Published Sep 18, 2024

Legal action related to climate change is more relevant than ever before—and scientists have a critical role to play.

Like all cases, climate-focused litigation requires evidence. And courtroom-ready evidence requires the engagement of scientists capable of conducting and interpreting rigorous litigation-relevant research.

To advance that work, we interviewed 19 legal practitioners and scholars and identified eight research needs for climate litigation. Of these, we highlight three as research priorities: attribution science, climate change and health, and economic modeling. We also describe five other strategic research areas: legal and financial accountability, disinformation and greenwashing, policy and governance, environmental and social impacts, and emissions accounting and reductions.

This is an online version of the report. For the full text, please download the PDF .

Climate litigation continues to grow and evolve as climate action lags and as impacts become increasingly severe. Although climate-focused cases employ a variety of legal strategies, they all need evidence to support their arguments, which requires the engagement of scientists capable of conducting and interpreting rigorous litigation-relevant research. To advance that work, we interviewed 19 legal practitioners and scholars and identified eight research needs for climate litigation. Of these, we highlight three as research priorities: attribution science, climate change and health, and economic modeling, all critical for advancing climate litigation and reflective of the field's evolution and progress. We designate the remaining five as strategic research areas: legal and financial accountability, disinformation and greenwashing, policy and governance, environmental and social impacts, and emissions accounting and reductions. Research to inform losses and damages emerged as a cross-cutting theme, integrating these priorities and strategic areas to address comprehensive litigation needs. This work underscores the important role scientists play in climate litigation and provides a research agenda for those looking to engage.

Introduction

Climate litigation has evolved and expanded significantly over the past decade. The increasing severity and scope of climate impacts and the inadequacy of public and private sector responses have led to a surge in lawsuits seeking to hold governments and corporations accountable for their contributions to climate change. More than 1,800 cases have been filed worldwide since 2015 (Figure 1), with at least 230 cases filed in 2023 alone (Setzer and Higham 2024). Because climate litigation encompasses diverse legal areas, such as environmental law, human rights, and consumer protection (Setzer and Higham 2024), the cases rely on robust research from a range of disciplines, including climate science, history, and economics (Stuart-Smith et al. 2021). This point underscores the power of rigorous interdisciplinary research in producing the evidence needed to support legal arguments.

Still, reports from the Intergovernmental Panel on Climate Change (IPCC) provide an important starting point for many legal teams, as the publications represent the global consensus on all types of research around climate change, from physical science and impacts to adaptation and mitigation (Wentz et al. 2023). However, IPCC reports often lack the detail and geographic specificity required to meet evidentiary standards for many types of climate cases, which drives the need for scientists to engage and produce research that can support litigation. In addition, cases focused on loss and damage---a term that refers to the negative impacts of climate change that are not being avoided or cannot be avoided through mitigation and adaptation---are expected to increase, which will require further research to support these claims (Setzer and Higham 2024). Given the rapid pace of case development and the range of disciplines from which cases draw evidence (Stuart-Smith et al. 2021), developing a litigation-relevant research agenda is key to enabling scientists to meet the needs of the legal community.

Here, we aim to develop that research agenda by identifying strategic research areas and tracking trends around evidence used in climate litigation. We conducted interviews with legal scholars and practitioners following an adapted, semistructured, open-ended script (Merner, Franta, and Frumhoff 2022) and used thematic analysis to identify, organize, and interpret patterns in our data. Data were collected between March and July 2024 through interviews with 19 participants who were selected based on their expertise in climate litigation and their geographical location (Table 1). This sample size is not large enough, however, to analyze comprehensive global trends, as interviewees represent only a small fraction of the global legal landscape. The semistructured interview format allowed for in-depth exploration of the participants' views while maintaining a consistent structure across the interviews.

In analyzing the interviews, we identified eight key research areas that present unique opportunities for scientists to engage with legal teams and contribute to the evolving landscape of climate litigation. Due to their critical importance in the current climate litigation landscape, three emerged as priority research areas: attribution science, climate change and human health, and economic modeling. We designated the remaining five as strategic research areas that address broader, interdisciplinary issues critical to climate litigation. These areas are legal duties and financial flows, disinformation and greenwashing, fair share analysis and compliance challenges, environmental and social impacts, and emissions accounting and reductions. Research to inform losses and damages, referring to the adverse impacts of climate change that are beyond the limits of adaptation, emerged as a cross-cutting theme. This current study contributes to the growing body of climate litigation research by identifying current trends, highlighting research priorities, and providing a basis for future studies. Our findings aim to guide researchers, inform practitioners, and foster communication between the legal and scientific communities to support future research and practice in this evolving field.

Research Needs for Climate Litigation

From the responses of the interviewees, we identified eight key research areas and a cross-cutting theme. Based on our understanding of the broader climate litigation field and the results of our interviews, we identified three priority research areas that directly support the most critical needs of climate litigation and five strategic research areas for future work. The scientific community can better support climate litigation efforts by addressing these research areas and providing robust, interdisciplinary evidence that meets the evolving needs of the legal community. Research to address and inform all aspects of climate losses and damages also emerged as a critical theme for future work, having applications across the priority and strategic research areas. Current and future research in the key areas, specifically that considers and addresses losses and damages, will enhance climate litigation effectiveness and contribute to wider efforts to mitigate and adapt to climate change.

Priority Research Areas

1. Attribution Science for Causal Links

Attribution science plays a critical role in establishing the causal links among climate change, its impacts, and specific emissions, which is fundamental in climate litigation. Interviewees highlighted a need for more of this type of research and for its results to be effectively communicated to legal professionals and policymakers to advance climate litigation and meet the evidentiary standards of the legal community (e.g., the but-for standard). This dissemination of knowledge includes explaining both the strengths and limitations of this research, advising on its applicability to legal contexts, and providing resources and training for legal teams to utilize attribution science effectively in litigation, including their recognition of Global North bias in existing literature. In that context, interviewees identified the need for attribution science focused on diverse geographies as well as the need for new methods to suit regions that may lack historical climate data, particularly in the Global South.

Although attribution science has made significant strides, interviewees also identified a need for attribution science focused on more types of climate events and at different scales, from local to global. The complexity of the physical processes involved and granularity of available data determine the feasibility of an attribution study and the ability to model the many associated factors. For example, attribution studies are more advanced and straightforward in areas in which the physical processes are relatively direct, such as heat waves and precipitation. In cases involving more complex processes, however, such as tropical cyclones or impacts on human systems, attribution becomes more challenging. Relatedly, interviewees noted the need for additional source attribution research, which quantifies the contributions of specific emissions sources (e.g., corporate actors, nations, states, and specific sectors) to climate change and its impacts, and also for more impact attribution research, which determines how specific people or places have been harmed by climate-related events. The field has made important advances in impact attribution, but quantifying harm remains challenging. Still, doing so is crucial for litigation that requires proof of harm, especially in differentiating between physical hazards and their social impacts.

Further, interviewees called for additional research about the risks and barriers that an overreliance on attribution science could present to achieving justice for underserved communities and countries, particularly in the Global South. Specifically, those that are most affected by climate change may be unable to seek justice through the court system because they lack the resources required to scope, conduct, and publish attribution studies. Addressing this issue, interviewees raised the need for research to examine the generalizability of attribution science to ensure that these findings are accessible to historically underserved communities and countries and to explore how other types of evidence can instead meet evidentiary standards.

2. Climate Change and Human Health

The connection between climate change and human health is increasingly recognized in legal contexts, as evidenced by cases in Switzerland and Montana (Setzer and Higham 2024). Understanding the health impacts of climate change is crucial for creating compelling legal arguments and achieving successful litigation outcomes. Interviewees identified the need for more research centering groups that are most vulnerable to the health impacts of climate change, such as people with disabilities, people experiencing poverty, older adults, infants, and pregnant people. This includes studying the effects of poor air quality, extreme heat, and water scarcity, as well as multiple and cumulative climate-related stressors. Additionally, interviewees highlighted the need for attribution studies to establish clear links between climate change and health outcomes. This includes studies on how climate change exacerbates conditions like asthma, cardiovascular diseases, and heat-related illnesses. Interviewees emphasized that all such research should include diverse geographic regions and temporal scales, ensuring a comprehensive understanding of health impacts globally. This would require collaborating across disciplines to gather and analyze relevant health data.

3. Economic Research on Climate Costs

Understanding the economic costs of climate change and climate inaction at various scales is vital for many legal cases. Courts require solid economic research to capture the financial implications of climate impacts and to determine appropriate remedies. Interviewees identified the need to conduct assessments detailing the costs associated with climate change, including direct damages, adaptation expenses, and lost economic opportunities. Each of these areas of study requires distinct methods. These assessments should cover a range of sectors and scales, from local communities to global economies. Further, interviewees stressed the need for economic modeling to predict future climate costs under different scenarios. These models should account for variables such as mitigation efforts, adaptation strategies, and economic resilience. Interviewees noted the need for economic analyses tailored for specific legal cases (although challenging to provide) so that findings are relevant and applicable to the contexts of individual lawsuits. This includes quantifying the economic benefits of proactive climate action and the costs of inaction.

By addressing these priority research areas, scientists can better inform climate litigation efforts, providing robust, interdisciplinary evidence that meets the evolving needs of the legal community. This research will not only enhance the effectiveness of climate litigation but also contribute to broader efforts to mitigate and adapt to climate change.

Strategic Research Areas

Legal Duties and Financial Flows

Legal and financial accountability emerged as areas in need of further research, including a pressing need for granular emissions accounting and mitigation pathways to hold corporations and states accountable, as noted in the section Emissions Reductions and Accounting. This is particularly true for smaller corporations and highly polluting industries, such as fashion and cement, that are understudied relative to the Carbon Majors, a group of 90 of the world's largest fossil fuel and cement-producing entities (Heede 2014). Interviewees also identified a need for research that characterizes and quantifies the role of the financial industry in supporting fossil fuel projects and thus contributing to emissions production (i.e., advised or financed emissions).

Disinformation and Greenwashing

Interviewees pointed out the need for research to identify and counteract dis- and misinformation and deceptive practices employed by opposing experts. This includes detailed analysis aimed at exposing and correcting misleading calculations and information disseminated by industries, their surrogates, and other vested interests. In addition to countering greenwashing, interviewees wanted additional research about whether and how greenwashing affects consumer behavior. Further, the need for research on counterfactual temperature trajectories---hypothetical scenarios that estimate what global temperatures would have been without specific emissions or corporate actions---was raised multiple times, illustrating the impact of corporate deception campaigns.

Fair Share Analysis and Compliance Challenges

Interviewees emphasized the need for research on fair share analyses for both corporations and nation-states, calling for additional research to understand compliance with and the ambition of Nationally Determined Contributions (NDCs). This research is crucial, as litigation increasingly targets inadequate mitigation goals and compliance gaps at the nation-state level. Furthermore, although the United Nations Framework Convention on Climate Change framework offers limited guidance for countries, there are no standardized emissions metrics or pathways for corporations, complicating efforts to hold them accountable for their climate impacts. For this reason, interviewees highlighted the urgent need for standardized emissions tracking and fair share analyses for corporations. These analyses should consider historical emissions and address the complexities of emissions arising from intricate business relationships, such as joint ventures. Studies could also investigate the direct and indirect lobbying activities of corporations in the context of climate policies and legislation, the influence of industry on IPCC Working Group III (the group tasked with synthesizing research focused on the mitigation of climate change), and the exclusion of financial sectors from critical processes. More, interviewees highlighted a need for clarity on the risks and implications of overshoot scenarios in which global average temperatures temporarily exceed thresholds like 1.5°C and 2°C and are then reduced using negative emissions technologies, such as carbon dioxide removal.

Environmental and Social Impacts

Interviewees stressed the importance of performing comprehensive environmental impact assessments that encompass a broad array of impacts, including those on biodiversity and climate. They identified such assessments as critical for infrastructure, energy, and other extractive projects, like mining, particularly if research can address the cumulative impacts to both communities and ecosystems over the lifetime of an individual project. Several interviewees mentioned the value of additional research on the climate consequences of land use change, the global reverberation of deforestation and loss of ecosystem services, and the broad ecosystem impacts of increasingly extreme weather events. Interviewees also highlighted the need for research on the effects of climate change on human rights and on the climate impacts for smaller remote and isolated communities, where long-term data collection may not have occurred.

Emissions Accounting and Reductions

Improving the granularity and communication of mitigation pathways for governments and corporations emerged as another key area for future research. This includes improved methodologies for documenting and reducing Scope 3 emissions (i.e., indirect emissions, including emissions generated through the intended use of a company's products), research on methane budgets, and studies supporting clear carbon budget targets. Further, interviewees identified a need for credible pathways for emissions reductions from corporations to serve as a counterfactual to misleading or incomplete transition plans. Interviewees also had questions about the actual impact of renewable energy credits and their effectiveness in reducing greenhouse gas emissions. Another key topic pinpointed for further research was carbon dioxide removal and its role in meeting temperature targets.

Additional Research Needs

Some research areas identified by interviewees fell outside these eight key areas, but are critical for advancing climate litigation. These include determining the time line of corporate and state knowledge about climate change, integrating Indigenous knowledge into formal structures that describe climate impacts and put forward opportunities for mitigation and adaptation, and reaching a better understanding of the evidentiary standards required for climate litigation. Also, interviewees suggested that research around the framing of climate targets---using temperature, atmospheric concentration of carbon dioxide, or other alternatives---would be valuable for informing litigation. Our study provides important global perspectives from a small subset of legal scholars. As climate litigation continues to grow, so will the need for comprehensive studies with larger sample sizes that can capture a wider array of perspectives.

Cross-Cutting Theme: Losses and Damages

Research to better understand climate-driven losses and damages emerged as a cross-cutting priority, emphasizing this theme as a burgeoning area for future climate-related cases. This could include comprehensive research to calculate the cost of these losses and damages, addressing both economic and noneconomic losses, such as those associated with intangible cultural heritage, social structures, and ways of life. Additionally, research and data detailing the costs and efficacy of adaptation measures at different scales would provide valuable information as communities seek reparations for climate-related harms. Research could also focus on the monetary impact of damages and the benefits of taking proactive climate action. In general, designing litigation-relevant research through a lens of addressing losses and damages would increase the usability and longevity of the research. This theme underscores the value of integrating diverse research efforts to comprehensively address the multifaceted impacts of climate change.

Our findings highlight the pressing need for additional research to support climate litigation as well as the challenges and opportunities for scientists who want to contribute. In the two years since the first study of this kind was published (Merner, Franta, and Frumhoff 2022), the field has evolved significantly, with legal practitioners gaining a more detailed and nuanced understanding of various aspects of climate change and its impacts. We see this reflected in the more granular research areas that practitioners identified through our interviews as well as through the types of cases that are currently under way.

The role of and need for attribution science was the primary research priority identified across interviews. The emphasis on these studies reflects a deeper recognition of the need for robust scientific evidence to support legal claims, particularly to understand losses and damages, including noneconomic losses of cultural and social structures (Sesana et al. 2021). Such efforts will require comprehensive data on both economic and noneconomic losses, and the absence of reliable data may create barriers to accessing justice through the courts for communities particularly vulnerable to climate impacts. Exploring standards of evidence across jurisdictions will be a critical area of analysis to ensure that a lack of attribution science does not impede the pursuit of accountability for those most affected by climate change, particularly since drawing causal connections around impacts is difficult in areas of the world with fewer data. Specifically, pursuing justice and reparative compensation should not require findings from a dedicated attribution study.

Outside of specific areas of research, interviewees identified challenges in communication that create barriers for legal teams pursuing climate litigation and present opportunities for scientists to engage in the legal space. Participants highlighted that information regarding the implications, nuance, and complexity of existing research is not reaching the legal teams that need it. In some situations, this issue appears to result from a lack of access to experts who can provide this perspective. In others, available scientific experts seem ill-equipped to communicate information in a way that resonates with the needs and priorities of a legal audience. Training programs that bridge legal and scientific fields and placement of scientists within legal teams would begin to address this issue, ensuring that scientific evidence is effectively translated into legal and policy frameworks. Beyond informing legal teams, interviewees also raised the importance of judicial education to enable courts and judiciaries to make informed decisions and rulings around climate change. For translation, interviewees highlighted that while the IPCC reports' Summary for Policymakers are available in six languages (Arabic, Chinese, English, French, Russian, and Spanish), the full reports that include details of specific geographies are available only in English, highlighting a critical gap in the accessibility of key scientific information to the vast majority of the world.

This study also yielded important insights about how people working in the legal and scientific spheres can better collaborate to advance climate action. For one, the difference in timelines for scientific research and legal cases was raised multiple times. Completing and publishing a novel attribution study, for instance, can take months to years, a time frame that can exceed that of an individual case. This discrepancy highlights the benefits of having scientists engage with legal teams from the outset to identify the type of science required to support a given argument and to recognize the vulnerabilities of using some kinds of research in a legal setting. In addition, interviewees noted the value of rapid and responsive research, which creates opportunities to understand dis- and misinformation, particularly with regard to misleading information arising from campaigns supported by corporations and their surrogates. Although this point was not raised by interviewees, we offer that the legal and scientific communities can work together to protect experts and safeguard their work, especially in light of the harassment, subpoenas, and intimidation lawsuits that experts have faced. By working together, scientists and legal experts can ensure the appropriate interpretation of scientific evidence for cases, alignment of timelines, and protection of experts.

Climate litigation continues to accelerate globally, increasing the importance of robust and rigorous scientific research to support cases. This study explores the priority and strategic areas for future research, highlighting how scientists can conduct litigation-relevant research and engage in legal spaces. Priority areas include attribution science, research focused on connections between climate change and human health, and economic research that quantifies the costs of climate impacts and mitigation strategies. We also identified five strategic research areas---legal and financial accountability, disinformation and greenwashing, policy and governance, environmental and social impacts, and emissions reductions and carbon management---that present opportunities for interested scientists to develop litigation-relevant research questions. Additionally, research to inform losses and damages emerged as a critical cross-cutting theme essential for addressing the multifaceted impacts of climate change that are not or cannot be avoided through mitigation or adaptation. As the impacts of climate change become increasingly severe and determination to maintain the status quo intensifies, the importance of research to inform litigation will only grow.

To identify emerging trends and strategic research areas for climate litigation for this study, we conducted 19 semistructured interviews between March and July 2024, followed by qualitative analysis. We recruited legal scholars and practitioners through a purposive sampling method (Schutt 2018), identifying potential participants through professional networks, academic publications, and recommendations from experts in the field. All interviewees hold law degrees and have been working on climate-related issues for a minimum of two years. To assess the trustworthiness of an interviewee, we evaluated their professional background, academic qualifications, and prior contributions to the field of climate litigation, ensuring that their insights were informed by substantial expertise and credibility. This approach aimed to gather insights from individuals who are actively engaged in or have substantial knowledge of climate litigation while also representing a range of geographies (Table 1). Although this method ensures the inclusion of relevant and knowledgeable participants, it may introduce selection bias.

Using a semistructured format allowed us to explore the complexity of each participant's perspective while maintaining a consistent structure across interviews. Participants were provided with a detailed consent form outlining the purpose of the study, the nature of their participation, and how their data would be used. We obtained informed consent from all interviewees prior to participation and maintained the stated confidentiality and anonymity throughout. We used a refined open-ended script developed from the previous year's feedback and evolving research priorities (Merner, Franta, and Frumhoff 2022). The script included questions about participants' perspectives on the most pressing research gaps, effective legal strategies, and types of evidence that have been most beneficial in climate litigation (Appendix 1). Interviews were conducted remotely, recorded with participants' consent, and transcribed for analysis.

The qualitative data were analyzed using thematic analysis, following Clarke and Braun's (2013) approach. The analysis involved multiple stages: familiarization with the data through repeated readings of transcripts, generation of initial codes from significant statements, and organization of codes into broader themes. We applied an emergent coding approach, allowing themes and constructs to organically arise from the data. This inductive process enabled us to capture a wide range of insights and perspectives without being constrained by a predetermined framework. Our method emphasizes flexibility and responsiveness to the data, ensuring that the analysis remains grounded in the actual content of the interviews and discussions. Two researchers conducted the theme development, employing discussion to reach consensus to ensure robustness and resolve discrepancies. Themes were reviewed and refined through iterative discussions among the research team to ensure accuracy and relevance. Final themes were defined, named, and linked to the research questions, with the findings validated by external reviewers. Notes were maintained throughout to document decisions and ensure transparency (Naeem et al 2023). This methodology, while comprehensive, has certain limitations. The selection of participants, although resulting in a diverse group, may still reflect biases that result from purposive sampling methods. Additionally, the shift from line-by-line coding to thematic analysis, while streamlining the process, may have resulted in less granular data categorization.

Primary themes from interviewees were organized by questions and collated into a spreadsheet following each interview. We then analyzed these themes to create a litigation-relevant research agenda and compile insights for scientists and researchers seeking to become involved in litigation.

L. Delta Merner is the lead scientist for the Science Hub for Climate Litigation at UCS. Carly A. Phillips is a research scientist for the Science Hub. Kathy Mulvey is the accountability campaign director for the UCS Climate and Energy Program.

Acknowledgments

This analysis was made possible by the generous support of UCS members.

The authors thank our two external reviewers for their feedback and Pallavi Shrestha for her administrative and logistical support of this work. The authors declare no conflicts of interest.

The opinions expressed herein do not necessarily reflect those of the individuals who reviewed the work. The Union of Concerned Scientists bears sole responsibility for the report’s content.

Clarke, Victoria, and Virginia Braun. 2014. "Thematic Analysis." In Encyclopedia of Critical Psychology , edited by Thomas Teo, 1947--52. New York: Springer. https://doi.org/10.1007/978-1-4614-5583-7_311 .

Heede, Richard. 2014. "Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers, 1854--2010." Climatic Change 122: 229--41. https://doi.org/10.1007/s10584-013-0986-y .

Merner, L. Delta, Benjamin Franta, and Peter C. Frumhoff. 2022. Identifying Gaps in Climate-Litigation-Relevant Research: An Assessment from Interviews with Legal Scholars and Practitioners . Providence, RI: Climate Social Science Network. https://cssn.org/cssn-research-report-2022-identifying-gaps-in-climate-litigation-relevant-research-an-assessment-from-interviews-with-legal-scholars-and-practitioners/.

Naeem, Muhammad, Wilson Ozuem, Kerry Howell, and Silvia Ranfagni. 2023. "A Step-by-Step Process of Thematic Analysis to Develop a Conceptual Model in Qualitative Research." International Journal of Qualitative Methods 22 (November):16094069231205789. https://doi.org/10.1177/16094069231205789.

Schutt, Russell K. 2018. Investigating the Social World: The Process and Practice of Research . 9th ed. Thousand Oaks, CA: SAGE.

Sesana, Elena, Alexandre S. Gagnon, Chiara Ciantelli, JoAnn Cassar, and John J. Hughes. 2021. "Climate Change Impacts on Cultural Heritage: A Literature Review." WIREs Climate Change 12 (4): e710. https://doi.org/10.1002/wcc.710.

Setzer, Joana, and Catherine Higham. 2024. Global Trends in Climate Change Litigation: 2024 Snapshot . London: Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science. https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2024/06/Global-trends-in-climate-change-litigation-2024-snapshot.pdf.

Stuart-Smith, Rupert F., Friederike E. L. Otto, Aisha I. Saad, Gaia Lisi, Petra Minnerop, Kristian Cedervall Lauta, Kristin van Zwieten, and Thom Wetzer. 2021. "Filling the Evidentiary Gap in Climate Litigation." Nature Climate Change 11 (8): 651--55. https://doi.org/10.1038/s41558-021-01086-7.

Wentz, Jessica, Delta Merner, Benjamin Franta, Alessandra Lehmen, and Peter C. Frumhoff. 2023. "Research Priorities for Climate Litigation." Earth's Future 11 (1): e2022EF002928. https://doi.org/10.1029/2022EF002928.

Appendix 1: Interview Script

Let's begin by getting to know you a bit better. Could you please give me an overview of your professional background, specifically your expertise in and any connections you have to climate litigation?

We want to understand how scientific evidence has or has not been used to inform climate litigation and which types of evidence are most valuable for different types of cases.

-- So, for those instances where scientific evidence was used in your work, what types of evidence or research areas have you found most beneficial in supporting your cases or legal efforts?

-- In situations where scientific evidence was not used, what barriers or considerations do you take into account when deciding to include or exclude scientific research into your legal strategies?

Could you identify any specific shortcomings or gaps in the available scientific evidence? What kind of scientific data or research do you think would add value to climate litigation efforts?

What additional scientific research do you think is needed? Why do you think further research in these areas is crucial for advancing climate litigation?

In your view, which types of climate litigation hold the most promise or importance for addressing climate change and its impacts? Why do you think these areas are particularly impactful?

-- How does accountability, both for high-polluting countries, individuals and companies, factor into your thinking around addressing climate change and its impacts?

Are there any legal strategies that you are not able to pursue due to the lack of specific scientific evidence? What areas of study do you think require more in-depth investigation to support such strategies?

Could you discuss the strengths and challenges of relying on scientific evidence in climate litigation? How does this impact case outcomes and broader legal strategies?

Merner, Delta, Carly Phillips, and Kathy Mulvey. 2024. Research Areas for Climate Litigation. Cambridge, MA: Union of Concerned Scientists. https://doi.org/10.47923/2024.15604

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Mandatory climate-related financial reporting to commence in 2025

The Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Bill 2024 has passed through both Houses of Parliament on 9 August 2024, establishing the country's new mandatory climate-related financial reporting regime. This legislation, aligned with international accounting standards, requires large corporations that exceed specific thresholds to include climate-related financial disclosures in their annual reports (via a new sustainability report) for the financial year commencing 1 January 2025 onwards.

The Australian Accounting Standards Board ( AASB ) is in the process of creating climate disclosure guidelines tailored to Australian companies, expected to be finalised in September. Meanwhile, the Australian Auditing and Assurance Board ( AUASB ) is preparing assurance frameworks for these climate disclosures, anticipated to be available by late 2024.

Changes to the regime: Scenario Analysis to include global temperatures which "well exceed" 2°C

The Senate required one significant change to the regime, which is reflected in the final legislation.

Under the AASB’s draft Australian Sustainability Reporting Standards released in October 2023, entities were expecting to assess their climate resilience in their financial reports against at least two future global temperature scenarios. The first scenario, aligned with the Climate Change Act 2022, assumes a temperature rise limited to 1.5°C above pre-industrial levels. The draft standards did not specify a second scenario, which was at the discretion of the entity. However, the changes to the legislation made by the Senate effectively mandate that entities analyse their resilience against a scenario where global temperatures “well exceeds the increase mentioned in subparagraph 3(a)(i) of the Climate Change Act 2022”, that increase being 2°C above pre-industrial levels. The Supplementary Explanatory Memorandum has stated that “well exceeds” 2°C means an increase of “2.5°C or higher” (see also sub-section 296D(2B)(a) of the Bill). This higher scenario aims to account for more extreme climate risks and mirrors frameworks used in physical risk assessments such as Australia’s National Climate Risk Assessment.

The new legislative requirement for a scenario which “well exceeds” 2°C now aligns with the Greens position, who pushed for mandatory disclosures addressing higher temperature outcomes. This higher scenario is also more stringent than the Paris Agreement’s goal of limiting temperature rises to well below 2°C, as well as the Taskforce on Climate-Related Financial Disclosure’s framework, which does not mandate consideration of scenarios beyond 2°C.

Regime otherwise unchanged

Other than the above changes to scenario analysis, the Bill was passed unamended from its initial form. However, there was considerable debate in the House of Representatives, particularly relating to the inclusion of scope 3 emissions and the modified liability provisions.

The following critical details of the regime remain unchanged:

• Scope 3 reporting: Disclosure of scope 3 emissions is only expected to be required from an entity's second reporting year onwards.
• Temporary “limited immunity”: A temporary "limited immunity" framework will apply for the first three years of reporting, applying to inherently uncertain statements about scope 3 emissions, scenario analysis or a transition plan.
• Content of sustainability report: The sustainability report will include climate statements for the year in line with the ASRS and, for the first three years, a director’s declaration that the entity has taken reasonable steps to ensure the climate statements are in accordance with the Corporations Act.
• Audit and assurance: Initially, the sustainability report will only be required to be reviewed or audited to the extent required by the audit standards made by the AUASB. From 1 July 2030, audit and assurance requirements will be phased in, being a positive assurance that the report complies with the Corporations Act and applicable AASB standards.
• Reporting entities and timeline: The thresholds for captured entities and the timeline for the phased-in approach of the regime remain unchanged.

Key takeaways

The reporting will be required for Group 1 entities for the financial year commencing 1 January 2025. This will be closely followed by large asset managers with greater than $5 billion under management which are captured as a Group 2 entity who will need to start climate-related financial reporting from 1 July 2026.

Those entities that have not voluntarily been reporting under the Taskforce for Climate-Related Disclosures may have significant preparatory work to do in order to integrate climate metrics and targets and scenario analysis into the risk management, strategy and governance of their organisation. The scope 3 reporting is also a considerable undertaking for those entities that have large or complex supply chains.

Corporates and directors should take care and seek appropriate advice to ensure that directors’ declarations are robustly verified and disclosures (together with related public statements) are appropriately audited to avoid greenwashing risks, particularly in the early years of reporting under the new regime. We expect that these disclosures will be heavily scrutinised by shareholders, potential investors, interest groups and, of course, ASIC. ASIC’s new regulatory guide for the climate reporting regime and other resources for those who prepare and use sustainability reports is expected later this year.

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