Climate change litigation is a relatively new front in fighting the accelerating effects of global warming—having jumped to the forefront over the past year with some high-profile cases garnishing international attention. Nonetheless, it might already need a shift in strategy to make it successful worldwide, some experts say.
While courts offer a potentially innovative and structured way to hold governments and corporations accountable for emitting greenhouse gases, the cases have overwhelmingly come from the U.S. and Europe. The legal strategies there have largely either challenged governments’ follow-through on their promises to the Paris Climate Agreement or demanded the fossil fuel industry pay for the damages caused by use of their products.
According to a report by the United Nations, 654 cases have been filed in the United States as of March 2017, with more than 230 cases being filed in all other countries combined. Outside of the United States, the majority come from Australia, the United Kingdom and the European Union.
“Perhaps we need to re-examine the definition of climate change litigation,” Dr. Jolene Lin, director of the National University of Singapore’s Asia-Pacific Centre for Environmental Law, said, noting that “the terminology and conceptual framework that we use to talk about it is developed in the Global North.”
The strategies being used reflect the legal systems in those countries. Liability cases, for example, reflect the strong tort laws that exist in the U.S. In Europe, government promises to cut emissions have been turned into climate plans those governments can be held accountable for. Human rights claims seem to be gaining steam in some developing countries.
A handful of major cases get most of the headlines—including the historic Urgenda decision compelling the Netherlands to reduce emissions and the youth-led case currently trying to force the U.S. government to stop institutionalizing fossil fuel use. Meanwhile, efforts by local communities across the globe have gone overlooked and many contain novel legal strategies.
“The legal system is not aimed at protecting people, protecting communities, or protecting the environment,” said Mari Margil, the Associate Director of the Community Environmental Legal Defense Fund. “You have to take on the legal system itself if you are going to have sustainability or environmental protection…. We need to fundamentally change our relationship with the natural world.”
Perhaps Nature Has Rights
This thinking has led many organizations to adopt a relatively new strategy on the local and national scale: the rights of nature. Often rooted in the diverse views of nature by Indigenous people, this strategy is largely a response to legal systems interpreting the environment and resources as property or commodities.
In Chile, environmental groups have been advocating for its rivers to obtain legal personhood, learning from the country’s largest indigenous group, the Mapuche nation. “Legal innovations that successfully incorporate this outlook could better protect rivers, essentially by giving them the same basic rights as people,” Jens Benöhr and Patrick Lynch wrote regarding the rights of rivers in Chile in Yale Environment 360. Camila Badilla, the coordinator of the Chilean Free-Flowing Rivers Network believes that this step has the potential to redefine our relationship to nature. “Perhaps in the future we will stop feeling like the center of nature,” she said.
Chile, however, is not the only nation grappling with this idea. One of the most formative cases has been in Ecuador, where Pachamama (Mother Earth) was included in the 2008 constitution. Bolivia soon followed suit; and as Mari Margil has written, “In Mexico, Pakistan, Australia and other countries, rights-of-nature frameworks are being proposed and enacted.”
More recent examples include India, which debated whether or not the Ganges and Yamuna rivers could obtain legal personhood, as well as Colombia. In India, the Supreme Court has put the case on stay. But in Colombia, in April of this year, the Supreme Court recognized the country’s Amazon as an “entity subject of rights” after a group of 25 young plaintiffs filed a lawsuit demanding the government “protect their rights to a healthy environment.”
These approaches are still in nascent stages and some experts, such as Lin, believe that the rights of nature pathway offers one of many avenues for climate change litigation. “There is a lot of litigation we see that has an impact on [climate change] mitigation and adaptation that go under the radar,” Lin said, referencing the media’s focus on cases that raise massive constitutional and environmental issues. “In Southeast Asia, the kind of climate change litigation is not going to look like the kind we see [elsewhere].”
Instead, people have utilized established frameworks, as well as novel approaches, to engage in climate change litigation. For example, engaging with planning laws throughout the region has a huge impact on enhancing or reducing how communities are impacted by climate change. This holds true for other laws as well, covering such areas as human rights, forest governance, environmental impact assessments and regional land laws.
And in China, a number of laws have been passed regarding public interest litigation. Although these laws may look different than those in the U.S., the main idea is the same: force corporations to address environmental pollution. Such small-scale cases are rarely highlighted, yet hold a significant place in how we should understand climate change litigation.
Outside of the U.S. and Europe, however, there have been larger cases that also reinforce Dr. Lin’s point about existing structures. In the 2015, an appellate court in Pakistan ruled in favor of Ashgar Leghari who sued the government for its failure to implement the National Climate Change Policy of 2012. According to the court, “the delay and lethargy of the State in implementing the Framework offended the fundamental rights of the citizens.”
In 2015, Greenpeace Southeast Asia and other organizations filed a petition with the Commission on Human Rights of the Philippines to open an investigation against 47 “carbon majors” and their responsibility for carbon emissions, climate change, the 2013 typhoon in the Philippines, and ultimately, human rights violations. As of September 2018, the commission has opened hearings in New York “into whether oil companies violate human rights by causing climate change.”
There are indeed roadblocks to litigation efforts as shown by the climate change case in California, the lengthy and uncertain process in the Philippines, the necessity to enforce litigation judgements, and the cost of litigation itself. Yet these legal trajectories make it clear that litigation can and will play a fundamental role in the climate change movement.
“Litigation can be really critical in building a movement. Even if it doesn’t succeed it can raise awareness,” Margil said. “It is about the evolution of the law.”