Litigating Climate Change in National Courts: Recent Trends and Developments in Global Climate Law

Date01 February 2017
AuthorMaria L. Banda and Scott Fulton
2-2017 NEWS & ANALYSIS 47 ELR 10121
A R T I C L E S
Litigating Climate
Change in National
Courts: Recent
Trends and
Developments in
Global Climate Law
by Maria L. Banda and Scott Fulton
Dr. Maria L. Banda is an international lawyer. She is currently
the Graham Fellow at the University of Toronto Faculty of
Law, a member of the World Commission on Environmental
Law, and a Visiting Attorney at the Environmental Law
Institute. Scott Fulton is President of the Environmental Law
Institute and a member of the United Nations Environment
Programme’s International Advisory Council on Environmental
Justice. He is a former U.S. Environmental Protection
Agency General Counsel, Environmental Appeals Judge,
environmental prosecutor, and environmental diplomat.
Summary
is Article highlights the role that national judiciaries
worldwide have played in developing the eld of “climate
law.” It focuses on some of the key lawsuits from civil and
common-law jurisdictions that may inuence climate law
beyond their borders, including climate mitigation and
adaptation cases as well as transnational climate cases. In
particular, it considers the procedural tools and interpre-
tive principles that judges have employed to decide novel
legal issues presented by climate litigation. It concludes
that judges are successfully adapting their traditional
role of administration of justice to the challenges posed
by climate change litigation, and holding their own gov-
ernments accountable. While courts have thus far been
unwilling to impose civil liability on private entities,
emerging science may help address some of the causation
and apportionment hurdles in these cases, and additional
and collateral avenues for private-sector accountability
may emerge.
Domestic and international judges have found
themselves at the front lines of the global eort
to address climate change, and their role can
only be expected to grow in coming years. As the Paris
Agreement on Climate Change comes into force,1 nationa l
judges wi ll increasingly be ca lled upon to help shape cli-
mate law, police existing obligations, and provide guid-
ance through the application of domestic and international
legal principles.
e developing eld of “climate law”—which has
emerged over the past decade through an explosion in cli-
mate change litigation—comprises a wide range of legal
disputes before a variety of judicial, administrative, and
arbitral institutions at the domestic, regional, and interna-
tional levels. is Art icle is principally concerned with the
role that dierent national judiciaries have played in this
process. In par ticular, it explores the procedural tools a nd
interpretive principles that national judges have employed
to decide novel legal issues presented by climate litigation.
As shown below, climate litigation in national courts
has gone beyond the traditional connes of environmen-
tal litigation—such a s air and water pollution, or environ-
mental impact assessments (EIAs)—to include a variety of
disputes addressing climate change issues both directly and
indirectly: lawsuits over constitutional rights to life, the
rights of future generations, climate treaty commitments,
and climate-resilient zoning regulations. ese disputes can
broadly be categorized as (a)litigation involving climate
mitigation measures—eorts designed to reduce or prevent
emissions of greenhouse gases (GHGs), and (b) litigation
involving climate adaptation measures—eorts designed
to build resilience and reduce the negative impacts of cli-
mate change on communities and ecosystems.
While hundreds of climate-related lawsuits have been
led worldwide in recent years, this Article focuses on
some of the key lawsuits from civil and common-law
jurisdictions that may inuence climate law beyond their
borders. e orders issued in the last few years in particu-
lar may signal a paradigm shif t in the engagement of the
judiciary branch relative to the issue of climate change.
Sections I and II provide an overview of these precedent-
setting climate mitigation a nd adaptation cases, such as a
U.S. district court’s recent order permitting constitutional
and public trust claims by a group of youths to proceed
to trial, e Hague District Court’s order setting specic
national emission reductions for e Netherlands, and the
1. Adoption of the Paris Agreement, Dec. 12, 2015, U.N. Doc. FCCC/
CP/2015/L.9/Rev.1 (entered into force Nov. 4, 2016).
          
       
          
institutions with which we are aliated.
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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