Courts and Litigants in Climate Governance

by | Apr 3, 2019

The literature on climate change litigation highlights key emerging, interdisciplinary themes including the role of science, time, place and human rights claims in climate change litigation and explores the relationship between litigation and climate governance.

Over the past 20 years, courts around the world have been increasingly engaged in debates about the causes and consequences of climate change. Scholars have, in turn, developed a flourishing body of literature on the phenomenon.

A recent WIREs Climate Change review of the climate litigation literature confirms a growing interest in this area of study. High-profile cases against national governments or against major emitters push for a reduction in greenhouse gas emissions or compensation for climate change-related loss and damage (regulatory). Cases brought by corporations usually challenge climate and environmental regulations (anti-regulatory).

The review highlights a number of gaps in our understanding of the drivers and impacts of both regulatory and anti-regulatory climate-related lawsuits. First, to date the research has focused primarily on a small number of high-profile cases concentrated in North America, Europe and Australia.

As a growing number of cases emerge in other countries (particularly in the Global South) and involving a wider range of actors (such as scientists, cities, funders and financiers), the evidence base about the impacts and efficacy of climate change litigation should also diversify. Second, despite some notable exceptions, research on climate litigation is still primarily dominated by legal scholars. The engagement of scholars in socio-legal studies, political science, sociology, geography and anthropology would reveal different facets of a complex, transnational, multi-scale phenomenon.

Addressing these gaps will help us develop a deeper understanding of the extent to which litigation is a tool to strengthen climate governance or to understand how litigation, under some conditions, may undermine governance efforts.

For instance, litigation may constitute a decentralized mechanism to enforce the Paris Agreement at national and subnational scales. It can also signal the strength and commitment of civil society’s mobilization on this issue.

Litigation may also serve as a tool to change the expectations of firms and investors regarding the political and legal risks of failing to address climate change. The adjudication of climate change has the potential to shape norms and beliefs in the broader population about the salience of climate change and the responsibility of different actors but it may also provoke a judicial or popular backlash. Finally, climate change litigation may (or may not) lead to new legal rules redefining responsibilities and liability in the context of globalized externalities that are unequally generated and have varied impacts both across and within borders.

 

Kindly contributed by the Authors.

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